Fordham Law


Justices Let Stand a Central Provision of Voting Rights Act

Jerry Goldfeder in The New York Times, June 23, 2009

Media Source

WASHINGTON — The Supreme Court on Monday let stand a central provision of the Voting Rights Act of 1965, declaring that there was no need at the moment to decide whether that provision was still constitutional in light of the fundamental changes that have swept across the South in recent decades.

In an 8-to-1 ruling in perhaps the most important case of its term, the court said that passing judgment on an act of Congress is “the gravest and most delicate duty that this court is called upon to perform,” and that it need not undertake that momentous duty at this time. But the court stated pointedly that “the act also differentiates between the states in ways that may no longer be justified.”

At stake was Section 5 of the act, which requires a number of states and many local governments, mostly in the South, to seek federal permission before changing their voting procedures. That section was reauthorized by Congress for 25 years in 2006, even though the lawmakers relied on practices that have all but disappeared and voting data from decades ago.

“The historic accomplishments of the Voting Rights Act are undeniable,” Chief Justice John G. Roberts Jr. wrote for the court. “When it was first passed, unconstitutional discrimination was rampant and the ‘registration of voting-age whites ran roughly 50 percentage points or more ahead’ of black registration in many covered states,” he noted, quoting from an earlier ruling involving the Voting Rights Act.

But while not striking down Section 5, the court ruled that a small Texas water district whose challenge to Section 5 led to Monday’s ruling — and by implication some other political units as well — should have an easier time applying for and obtaining exemption, or getting a “bail out,” from Section 5 provisions. So Monday’s ruling was a victory for the Northwest Austin Municipal Utility District Number One in its suit, backed by a conservative group, against the United States.

More important, the court noted:  “Since 1982, only 17 jurisdictions — out of the more than 12,000 covered political subdivisions — have successfully bailed out of the act. It is unlikely that Congress intended the provision to have such limited effect.”  Exactly which political units will be able to “bail out” of Section 5 will probably require detailed examination.

Only Justice Clarence Thomas dissented Monday, stating that he thought it inappropriate to sidestep the constitutional question in Northwest Austin Municipal District Number One v. Holder, No. 08-322, and that he thinks Section 5 is no longer constitutional.

Those who want the Voting Rights Act to remain intact were likely to greet Monday’s ruling more with relief than exultation. “The Supreme Court has essentially granted the Voting Rights Act a stay,” Jerry Goldfeder, adjunct professor of election law at Fordham Law School, said. Since the court sidestepped the issue of constitutionality, “the law’s continuing viability is assured for the foreseeable future,” said Mr. Goldfeder, who is special counsel at Stroock & Stroock & Lavan and the chairman of the Election Law Committee of the Association of the Bar of the City of New York.

Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee, issued a statement expressing relief at the ruling and saying that if the court had overturned Section 5, it would have been guilty of “judicial activism.”

“However, I strongly disagree with the Supreme Court that Congress’s reauthorization of Section 5 poses serious constitutional concerns,” Mr. Leahy said. “There is no more explicit constitutional grant of power to the Congress than in the second section of the 15th Amendment, to protect the right to vote.”

When the case was argued on April 22, the questions posed by several justices hinted at a willingness to find Section 5 unconstitutional. But Chief Justice Roberts used language that every member of the court, including Justice Thomas in part, was able to embrace. Referring to the Voting Rights Act in its entirety, the chief justice wrote,  “In part due to the success of that legislation, we are now a very different nation.”

How different can be appreciated, as some of those associated with the case have pointed out, with the presence of a black man in the White House and many black elected officials in what used to be the Confederacy, including Representative John Lewis, Democrat of Georgia, who was beaten by Alabama police officers in a civil rights march in 1965.