Supreme Court Does Not Invalidate the Voting Rights Act: At Least for Now

At the excellent Election Law blog / Rick Hasen has a very good analysis of the Supreme Court decision today on the Texas municipal utility district’s fight to get out from under the voting rights law (rarely achieved)–which was to give the district a possibility to get out but not to deal with the constitutionality of the Voting Rights Act. This law is a centerpiece of the 1960s civil rights movement and is a continuing barrier to various attempts to restrict the rights of voters of color–which white-conservative groups still often try to do.

Indeed, over the last few decades, black voters have continued to face attempts to reduce the efficacy of their political participation. Research by Chandler Davidson and Frank Parker has demonstrated that electoral discrimination persists in such forms as vote dilution, gerrymandering, the changing of elective offices into appointive offices, and unnecessary revisions in qualifications for office. Numerous strategies have been seen in each of the presidential elections in recent years.

Considering today’s decision, Hasen recalls his worried commentary not long ago at Slate:

“Under the leadership of Chief Justice John Roberts, the Supreme Court has not been friendly to voting rights or reasonable campaign finance laws. But so far, its retrenchment has been incremental….What’s especially worrying about NAMUDNO is that the case does not provide the court with an easy incremental way out: If a majority of the justices want to side with the challengers to the Voting Rights Act, there’s not much they can do short of holding the act as broadly unconstitutional….The statute allows jurisdictions that can prove they no longer engage in racial discrimination in voting to petition to bail out from coverage under Section 5. The utility district wants such a bailout. But the statute clearly says that only the entire state like Texas or a political subdivision that registers voters (which the utility district does not do), can ask for a bailout. Since there’s no good statutory loophole, the larger constitutional question seems unavoidable.”)

On today’s decision, Hasen see Chief Justice Roberts as backing off on his hostile view of the Voting Rights Act, for now:

It is clear he thinks the Act is unconstitutional under the “congruence and proportional” standard, and he’s on record as believing that the plain meaning of a statute (backed by a Supreme Court interpretation no less) should generally control. So what happened here? As I’ve repeatedly said, the Voting Rights Act is a crown jewel of the civil rights movement, and it would be symbolically monumental to strike it down. Clearly such an opinion would have been a 5-4 decision. Either the Chief wanted to avoid the political divisiveness of such a ruling (while still getting a result he wanted) or perhaps Justice Kennedy was going to go in this direction, and the Chief thought it would be more politically expedient for the entire Court (or most of the Court) to go in that same direction. That buys him judicial minimalist credibility without costing much of anything. The biggest cost is punting on the question of the standard to apply when the constitutional question reemerges in a future case.


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.

It is significant that, even with Democrats in control of Congress and an African American president, that a few unelected right-wing judges can threaten to end the civil rights progress in voting and other areas. This shows how fragile some civil rights gains really are, and how easily this often undemocratic system of ours can backtrack.


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