By Mark A. Posner, Senior Fellow, Lawyers' Committee for Civil Rights Under Law; Former Special Sec. 5 Counsel, Civil Rights Division, U.S. Department of Justice. Posner's previous guest blog posts on NAMUDNO are available here and here.
Not since 1903 has the Supreme Court invalidated national legislation aimed at guaranteeing the civil rights of our country's racial and ethnic minority citizens, and beginning in the 1960s the Court has broadly construed Congress' authority to enforce the Reconstruction Amendments. But the Court has backpedaled on its view of this authority in recent years and, after oral arguments were held in Northwest Austin Municipal Utility District Number One v. Holder, it appeared that the Court's conservative majority was poised to strike down the 2006 reauthorization of Section 5 of the Voting Rights Act. This, it appeared, would sharply divide the Court prompting a forceful dissent by four Justices, and would be met with widespread condemnation and anger among political leaders, commentators, and ordinary citizens.
The Justices, however, took a collective deep breath and, in an 8-1 decision issued on June 22, 2009, opted to sidestep the constitutional issue and instead give the plaintiff municipal utility district merely a narrow statutory victory. The Court held that the district is eligible to utilize a provision of the Voting Rights Act that allows individual jurisdictions to terminate their Section 5 coverage ("bail out"), reversing the district court's decision to the contrary. Thus, the question whether Congress acted within its constitutional authority when it reauthorized Section 5 for an additional 25 years has been left for perhaps another case and another day. Justice Clarence Thomas concurred in the statutory ruling but dissented on the ground that that the Court should have gone further and ruled that Section 5 is unconstitutional.
For civil rights advocates, a small battle was lost but a vital provision of the Voting Rights Act lives on, at least for now. As the key post-2010 redistricting cycle approaches, Section 5 will continue to require that jurisdictions with a history of voting discrimination (nine states and portions of seven others, mostly in the South and Southwest) obtain federal approval ("preclearance") of all changes in their voting practices and procedures. Specifically, the covered jurisdictions must continue to demonstrate either to the District Court for the District of Columbia or to the Justice Department that their voting changes neither will have the purpose nor will have the effect of discriminating on the basis of race, color, or language minority status.
In avoiding the constitutional issue, Chief Justice John Roberts, writing for the Court, gave some inkling of the trepidation the Justices apparently felt about holding unconstitutional a statute which the Court four times previously has upheld. In an unusual homage to judicial restraint, the Chief Justice emphasized that the Court is "keenly mindful of [its] institutional role," noting that "'Congress is a co-equal branch of government,'" and that "[t]he Fifteenth Amendment empowers ‘Congress,' not the Court, to determine in the first instance what legislation is needed to enforce it." The Chief Justice also observed that "[t]he historic accomplishments of the Voting Rights Act are undeniable" and that "Congress amassed a sizable record in support of its decision to extend the preclearance requirements."
The Chief Justice also, however, took the opportunity to spell out in some detail a series of concerns that he and perhaps other Justices have with Section 5. Many of these concerns previously have been rejected by the Court in upholding Section 5's constitutionality and others were addressed by Congress when it prepared its reauthorization record. Nonetheless, the Chief Justice's list includes: federalism costs; improvements in the electoral conditions for minority voters in the South; Section 5's departure from the principle of "equal sovereignty" among the States; the putative race-conscious nature of the Section 5 requirements; and the potential outdated nature of the Section 5 coverage formula.
What comes next is unclear. The case will return to the district court for a merits determination as to whether the municipal utility district may bail out. Assuming that bailout is granted, it seems that a new lawsuit challenging the constitutionality of Section 5 could be filed. In addition, some commentators, who view the Chief Justice's list of concerns as a warning to Congress about what may occur if the Court is again asked to rule on the constitutionality of the 2006 reauthorization, have suggested that Congress should undertake a review of potential amendments to Section 5. Finally, because the Court's statutory ruling will allow a broader group of covered jurisdictions to seek to bail out, the Justice Department and the D.C. District Court may soon become busy handling these matters. All of this will be monitored closely by civil rights advocates, who will continue their efforts to ensure that Section 5 remains in force. But, for the moment at least, civil rights advocates simply are breathing a huge sigh of relief.