Disappointment: Supreme Court Upholds Section 5 of the Voting Rights Act
UPDATED Below the Fold

Section 5 of the Voting Rights Act requires that certain states and local governmental units within those states receive preclearance from the Attorney General before they alter any election procedures. Section 5 is limited to states (and the local districts within those states) that Congress determined used impermissible voting procedures designed to exclude black voters in 1972. In 2006 Congress reauthorized the VRA for another 25 years, keeping the 1972 base-line.

Of course, this raises grave constitutional questions by imposing substantial burden and interference on local governments. For example, the utility district at issue in this case wasn't created until 1987. There has never been any indication that it discriminated on the basis of race in its board elections. And yet, because it is located in Texas--a covered jurisdiction--it must go hat in hand to the Attorney General every time it wants to alter an election procedure. There is a great deal of evidence that AGs make demands on covered districts for political reasons and not just to ensure that elections are proper.

By 8-1 vote, the Supreme Court today declined to overturn section 5 (PDF). The Court avoided the constitutional questions entirely and ruled instead that certain local districts can make use of a "bailout" statute. Under the statute--which the Courts had previously interpreted to mean something entirely different--local districts can bailout of the preclearance requirement if they can convince a three judge panel that they aren't a bunch of racists. The bailout provision simply replaces the intrusion by the AG with intrusion by federal judges. Since 1982 when the bailout statute was added, only 17 covered jurisdictions out of 12,000 have managed to bailout.

The only judge to vote to overturn section 5 was Justice Thomas. He writes that the other justices are impermissibly dodging the constitutional issue. And then he gets to the meat:

In the specific area of voting rights, this Court has consistently recognized that the Constitution gives the States primary authority over the structuring of electoral systems. “No function is more essential to the separate and independent existence of the States and their governments than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nature of their own machinery for filling local public offices.”

State autonomy with respect to the machinery of self government defines the States as sovereign entities rather than mere provincial outposts subject to every dictate of a central governing authority. See U. S. Const., Amdt. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”). In the main, the “Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.”

To be sure, state authority over local elections is not absolute under the Constitution. The Fifteenth Amendment guarantees that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” §1, and it grants Congress the authority to “enforce” these rights “by appropriate legislation,” §2. The Fifteenth Amendment thus renders unconstitutional any federal or state law that would limit a citizen’s access to the ballot on one of the three bases enumerated in the Amendment. Nonetheless, because States still retain sovereign authority over their election systems, any measure enacted in furtherance of the Fifteenth Amendment must be closely examined to ensure that its encroachment on state authority in this area is limited to the appropriate enforcement of this ban on discrimination.

He goes on to describe how section 5 was historically necessary to prevent states from discriminating in election procedures, but that its constitutionality has always "depended on the proven existence of intentional discrimination so extensive that elimination of it through case-by case enforcement would be impossible."

The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the FifteenthA mendment no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of “grandfather clauses, property qualifications, ‘good character’ tests, and the requirement that registrants ‘understand’ or ‘interpret’ certain matter" are gone. There is thus currently no concerted effort in these jurisdictions to engage in the “unremitting and ingenious defiance of the Constitution,” that served as the constitutional basis for upholding the “uncommon exercise of congressional power” embodied in §5.

The lack of sufficient evidence that the covered jurisdictions currently engage in the type of discrimination that underlay the enactment of §5 undermines any basis for retaining it. Punishment for long past sins is not a legitimate basis for imposing a forward-looking preventative measure that has already served its purpose.

UPDATE: Rick Hasen from Election Law Blog gets it right:

Despite Chief Justice Roberts' longstanding skepticism of the Voting Rights Act and his blistering set of questions to supporters of section 5's constitutionality during oral argument, the Chief has managed to put together a coalition of 8 of 9 Justices to put the question off for another day. To do so, the Chief had to ignore the seeming plain language of the act, as well as earlier Supreme Court caselaw on point to reach an interpretation of the Act virtually no lawyer thought was plausible. And once again he has been able to get the Court to reach an outcome he desires through statutory interpretation and the doctrine of constitutional avoidance. Still, this is a much greater victory for supporters of the Voting Rights Act (and especially for Justice Souter) than for Roberts.

posted by Gabriel Malor at 11:00 AM

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