September-October 2009 Issue • Volume 37 • Issue 7

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The U.S. Supreme Court
and the Voting Rights Act

by Douglas Snyder, Bowie State University and
Board of the Maryland Legal Services Corporation

Along with my professional interest in the civil rights movement and the resulting equal rights laws, I have a personal interest. Reverend. James Reeb, clubbed to death after the second abortive Selma-to-Montgomery march, hailed from the same town of Casper, WY, as I do. His martyrdom was an important catalyst to the passage of the 1965 Voting Rights Act.

The legal brief of a challenge to the 2006 renewal of the Voting Rights Act of 1965 cited President’s Obama’s election as evidence the Act, in its original form, is no longer needed. Yet, while the president’s race was not mentioned during the oral argument before the U.S. Supreme Court on April 29, Justice Antonin Scalia mentioned that an African American is the current Chief Justice of Virginia. Debo Adegbale, an attorney with the NAACP Legal Defense and Educational Fund, replied that electing persons to high office does not negate long-standing patterns of discrimination. During a C-SPAN interview on June 1, Mary Berry, former co-chair of the U.S. Commission on Civil Rights, referring to the need to continue the Voting Rights Act in its present form, said, "We’re not quite there yet."

At issue was a key provision in Section 5 of the Voting Rights Act, which requires some states, mostly in the South, to have any changes in voting procedures cleared in advance with the Department of Justice or a federal court. A small voting district in Texas filed the suit because it had to seek preclearance to move its polling place from a garage to a school. The state of Texas did not join the challenge nor did any of the other affected states. There is a "bail out" procedure for such an action, but it requires a lawsuit, although it may be a "friendly" one. To date only 17 subdivisions of the 12,000 covered by the Act have bailed out.

The Challenge

The challenger’s attorney, Gregory Coleman, was arguing for relief from the preclearance provision, yet not throwing it out entirely, " . . . even if it is unconstitutional." After Coleman mentioned that there are both non-discrimination and non-circumvention statutes, Justice David Souter joined the argument. He pointed out circumvention, especially, is still relevant; Justice Ruth Bader Ginsberg then stated that second generation discrimination is more subtle and covert than first-generation discrimination. Justice Stephen Breyer then gave a list of indicators used as evidence for discrimination. His list included: registration turnout, the number of minority office holders, the number of Department of Justice rejections of proposed changes by covered jurisdictions (700 since 1982), polarized voting patterns, and the number of anti-discrimination lawsuits (219). Attorney Coleman said Breyer was using a retrospective approach.

The Defense

The principal U.S. attorney was Deputy Solicitor Neal Katyal. He began his argument by stating Congress reauthorized the Act in 2006 for another 25 years (including two decennial censuses) after 16,000 pages of information was gathered by Congress over 10 months and 21 hearings. Chief Justice John Roberts noted there were a relatively low number of rejections at voting facilities, compared to the number of preclearance requests. Katyal responded that he felt this number indicated the Act was an effective deterrent to discrimination. Chief Justice Roberts inquired when will Congress be able to predict the future with sufficient certainty to cease renewing the Act? He said, "Obviously, no one doubts the history here and that the history [of the covered states] was different. But at what point does that history . . . stop justifying action with respect to some jurisdictions." Roberts seemed unconvinced by the substantial evidence gathered by Congress. This evidence, according to Katyal, indicated that contemporary discrimination, particularly in the form of circumvention, exists and justified the Act’s reauthorization. Justice Scalia stated the near unanimity in Congress—no negative votes in the Senate and only 33 in the House—might be due to elected representatives’ self-interest in being re-elected, not to the weight of the evidence arguing the need to reauthorize the Act.

At this point, Justice Anthony Kennedy, thought to be the "swing vote" in this case, asked if some states should be asked to have a burden not carried by others and further stated that he thought the sovereignty of the covered states is an issue. He seemed to be questioning the constitutionality of continuing Section 5 and to be focusing on the equal protection clause of the 14th Amendment. Justice Samuel Alito also said this suit raises an immense constitutional issue. While he acknowledged the necessity for the Voting Rights Act and its past success, Justice Kennedy wondered, as did Justices Scalia and Roberts, whether Congress had met the burden of marshalling sufficient evidence to continue the Act in its present form. Justice Clarence Thomas was silent.

Section 5 has often been called the "heart" or "teeth" of the Voting Rights Act. The court reporter for the Washington Post, Robert Barnes, noted that the Court has found Section 5—covering Virginia, Alaska, Alabama, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and parts of seven other states—constitutional four times since 1965. Barnes felt the Supreme Court’s decision would depend on "…whether Kennedy is ready to declare the law unconstitutional or whether there is a way out, perhaps by loosening the requirements on how covered jurisdictions can bail out." After witnessing the argument, I felt this was an accurate prediction.

The Decision

When the decision was announced on June 23 to uphold Section 5, it ran counter to the predictions of many observers that Section 5 would be declared unconstitutional by a 5 to 4 vote. However, a few Court watchers speculated that the 8-to-1 decision, with only Justice Thomas dissenting, may have been a compromise when Chief Justice Roberts could not get the fifth vote to overturn. Be that as it may, Roberts wrote the majority opinion, which expressed concern that Congress’s actions in extending Section 5 "raise serious constitutional questions," but "the importance of the questions does not justify our rushing to decide it." The Court made it clear that all political subdivisions covered by Section 5, including the small Texas political subdivision at issue, were free to apply for exemptions. The majority opinion also contained thinly veiled warnings to Congress that it should reexamine the provisions of the Voting Rights Act in terms of their applicability today. The decision is seen as at least a partial victory for both the challengers and the defenders of Section 5. logo

 

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