Supreme Court Decides NAMUDNO: Voting Rights Act Narrowed, But Survives

By Jeralyn, Section Supreme Court
Posted on Mon Jun 22, 2009 at 12:07:07 PM EST
Tags: Voting Rights Act (all tags)

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In a 8 to 1 decision (pdf), the Supreme Court allows the Voting Rights Act to survive....barely.

The justices, voting 8-1, chose not to decide the constitutionality of a provision requiring that officials in eight states and parts of eight others get Justice Department clearance before making changes. The court instead said a small Texas utility district and other governmental bodies could seek an exemption. Justice Clarence Thomas issued a partial dissent.

Tony Mauro has more, as does Scotus Blog, which says:

Perhaps one of the main ways to read the Court’s ruling, then, is that it it a warning to Congress that it needs to reconsider Section 5, and shore it up, if it can, with a new formula for coverage, and provide some assurance that it will no longer single out some states to bear Section 5’s obligations in ways that the Court suggested were now unequal.

[More...]

Law Prof Rick Hasen at his Election Law Blog has this analysis. He begins:

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:

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Supreme Court Decides NAMUDNO: Voting Rights Act Narrowed, But Survives | 14 comments (14 topical)

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Another election expert (5.00 / 0) (#3)
by Steve M on Mon Jun 22, 2009 at 12:21:28 PM EST

my good friend, Professor Heather Gerken, writes:

There are several signs that the Court intends this to be a punt. First, the statutory argument is one that that almost no one (save Greg Coleman, the lawyer who argued the case and who is now entitled to be described as a mad genius) thought was particularly tenable because of prior Court opinions. Second, while the opinion contains some rather dark hints about Section 5's future, those statements are countered by observations that supporters of the Act will plainly cite during the next go-round. Still, it's hard to read this decision and think that Section 5 is going to have an easy time of it the next time it is challenged in this Court.

What she doesn't address, though, is HOW Section 5 will come before the Court again any time soon. As a result of today's holding - which I agree was activist in the sense that it warped statutory language in order to reach a compromise outcome - anyone who is aggrieved by Section 5 now has the right to file a "bailout suit" arguing that they ought to be exempt. Truly innocent entities, like the utility district that brought today's case, are likely to prevail in the bailout suit.

To bring another constitutional challenge, someone will have to lose the bailout suit, lose their appeal of the factual determinations in the bailout suit (because if the appellate court finds the plaintiff was wrongfully denied the bailout, there's no need to reach the constitutional issue), and only then argue "fine, we don't meet the statutory criteria for a bailout, but those criteria are too onerous and you should just strike the whole thing down." I predict it will be quite a while before such a challenge comes before the Court.

It's hard to see this outcome as anything less than the conservative majority losing their nerve. Justice Kennedy is usually the fence-sitter who brokers a compromise, but as I recall he seemed pretty hostile to Section 5 during oral arguments. So it could just be that one or more of the conservatives simply couldn't bring themselves to commit such a stunning act of judicial activism.

IMO the Georgia Dems showed the way forward (none / 0) (#4)
by andgarden on Mon Jun 22, 2009 at 12:26:15 PM EST

in 2002 when they sued for a declaratory judgement on their redistricting plans. The lesson is, if you think the Justice Department bureaucrats are going to give you trouble on an important change, turn to the courts.


But I don't see (none / 0) (#5)
by Steve M on Mon Jun 22, 2009 at 12:33:06 PM EST

how that approach could result in a constitutional challenge. You have to go through the process of seeking a bailout first, or the claim won't be ripe.


Well, it wouldn't (none / 0) (#6)
by andgarden on Mon Jun 22, 2009 at 12:39:23 PM EST

But it makes the VRA less relevant.


Or maybe not (none / 0) (#7)
by andgarden on Mon Jun 22, 2009 at 01:16:39 PM EST

I have to think about this a little bit.


: More relevant I think (none / 0) (#9)
by Big Tent Democrat on Mon Jun 22, 2009 at 01:36:36 PM EST

Not 5:4 (none / 0) (#1)
by andgarden on Mon Jun 22, 2009 at 12:12:34 PM EST

It's 8:1, for now.

: thanks, fixed (5.00 / 1) (#2)
by Jeralyn on Mon Jun 22, 2009 at 12:15:08 PM EST

Here's an issue (none / 0) (#8)
by Big Tent Democrat on Mon Jun 22, 2009 at 01:36:08 PM EST

The SCOTUS has ruled that Voter ID laws are legal. Yet preclearance bailout requires, according the CJ Roberts:

To bail out under the current provision, a jurisdictionmust seek a declaratory judgment from a three-judge District Court in Washington, D. C. 42 U. S. C. §§1973b(a)(1), 1973c(a). It must show that for the previ-ous 10 years it has not used any forbidden voting test, hasnot been subject to any valid objection under §5, and has not been found liable for other voting rights violations; it must also show that it has "engaged in constructive efforts to eliminate intimidation and harassment" of voters, and similar measures. §§1973b(a)(1)(A)-(F).

(Emphasis supplied.) Since voter ID laws are in fact de jure attempts to intimidate and harass voters, how do you square that circle?

I think I need to write a post about this one.

: Please do! (none / 0) (#10)
by andgarden on Mon Jun 22, 2009 at 01:57:28 PM EST

interesting (none / 0) (#11)
by TeresaInPa on Mon Jun 22, 2009 at 03:46:39 PM EST

it sound very similar to the ruling on eminent domain everyone was up in arms with a few years ago. The courst is saying that according to present laws this is the ruling. However if you do not like it you must change the laws in your state.
I must have been the only liberal on the internets who thought the ruling was correct.
This is why I am not thrilled with the nomination of Sotomayor and the whole idea of nominating people with empathy..... I do not want liberal activist any more than I want conservative ones. I LIKE when the court is rational and umemotional and brilliantly so. In fact I think Roberts and Aleto have turned out to be not so bad, ....so far. I want another Souter. Are there more of him out there?

Frankly, this comment gets a lot wrong (none / 0) (#12)
by andgarden on Mon Jun 22, 2009 at 03:49:04 PM EST

bit the biggest thing is the suggestion that Alito and Roberts are anything like Souter.


so tell me what it gets wrong (none / 0) (#13)
by TeresaInPa on Mon Jun 22, 2009 at 03:54:16 PM EST

otherwise why even bother responding. And where did I "suggest" Roberts and Alito were like Soluter. You imagined that inference. Stick to the facts please.


: OK (none / 0) (#14)
by andgarden on Mon Jun 22, 2009 at 04:01:18 PM EST

Today's decision does not say that " if you do not like it you must change the laws in your state. " Nor does it say anything like that.
You also say:

I LIKE when the court is rational and umemotional and brilliantly so. In fact I think Roberts and Aleto have turned out to be not so bad, ....so far.

But in fact Alito and Roberts HAVE been activists, on guns for example.
Also, because you didn't give any reason to think otherwise, I think my inference about Roberts and Alito was fair. If you want to walk that back, be my guest.