Just as the Allied invasion of North Africa was a preliminary battle to the main fight in Europe, so the Supreme Court’s decision last week in Northwest Austin Municipal Utility District v. Holder was just a skirmish in the coming war over the Voting Rights Act (VRA).
The case began when a small Texas utility district sued the U.S. attorney general, claiming that it was entitled to use a “bailout” provision that would exclude it from coverage under Section 5 of the VRA. Section 5, passed as an emergency, five-year measure in 1965, requires nine covered states (and parts of seven other states) to submit any change in their voting laws to the Justice Department for preapproval, the equivalent of federal receivership. The utility district argued that if it could not bail out, then Congress’s renewal of Section 5 in 2006 for another 25 years was unconstitutional because the systematic discrimination in 1965 that justified its passage no longer exists.
The Supreme Court sidestepped the constitutional question, following its long-held rule that it will avoid constitutional issues if it can decide a case on narrower, statutory grounds. Instead, the court held that the Justice Department’s narrow interpretation of “political subdivisions” entitled to seek bailout was wrong and has “helped to render the bailout provision all but a nullity.” Only 17 jurisdictions out of more than 12,000 have successfully bailed out from coverage since 1982. Congress could not have intended the bailout provision to have such a limited effect. All political subdivisions, including this Texas utility district, are eligible to file a bailout suit.
Liberals who support this extraordinary and unprecedented intrusion into state sovereignty should consider the questions that Chief Justice John Roberts raised over the constitutionality of Section 5. Even scarier for them should be the fact that seven other justices, including all of the liberals, joined in Robert’s opinion. Only Justice Clarence Thomas wrote a dissenting opinion and only because he thought the court should declare Section 5 unconstitutional.
All of the justices agreed that Section 5 of the Voting Rights Act “raises serious constitutional concerns.” While the court admitted the historic accomplishments of the Voting Rights Act, it also noted that the conditions that the court relied upon in prior decisions to uphold its constitutionality have unquestionably improved. While the law has been very successful, it must be justified by current conditions because the way it differentiates between the states may no longer be justified.
In 1965, Congress put a triggering formula into the VRA to determine which states would be covered, based on voter registration and turnout below 50% in the 1964 election. This was updated to the 1968 and 1972 elections when Section 5 was renewed in 1970 and 1975, but it has never been updated since then. So states like Georgia, Mississippi and Alabama are still covered today based on 40-year-old election data. Yet blacks now register and vote at the same or higher rates than whites in covered states like Virginia, and in fact at higher rates than non-covered states like Pennsylvania.
According to the court, this is “considerable evidence that [the coverage formula] fails to account for current political conditions.” It is true that “Congress amassed a sizable record in support of its decision to extend the pre-clearance requirements” in 2006 but “whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”
Constitutionality Still Unclear
This opinion leaves open the issue of the constitutionality of Congress’s renewal of Section 5 in 2006. The many doubts the opinion expresses over the justification for its continued existence should make proponents very nervous. It leaves the path wide open to further challenges.
Forty years ago the Supreme Court concluded that the “exceptional conditions” prevailing in the South demanded “extraordinary legislation otherwise unfamiliar to our federal system.” But we are a different nation today, and Section 5’s time has passed. When the main battle is finally fought in the Supreme Court in the next round of litigation over Section 5, the opinion in this case is a hopeful sign that that the court will recognize what everyone else (except perhaps the NAACP) has long recognized: Jim Crow has been dead for decades and is never coming back.