On Monday, the Supreme Court announced one of the biggest decisions of the year in Northwest Austin Municipal Util. Dist. No. One v. Holder, creating a stir by refusing to reach a decision on the constitutionality of the Voting Rights Act.
Sect. 5 of the Act was challenged by a small utilities district in Texas, one of the 9 states subjected to the Act.
According to Sect. 5, if the district wishes to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964,” it must first “institute an action in the United States District Court for the District of Columbia for a declaratory judgment.”
Essentially, if the district wants adjust its voting procedure in the slightest, it needs clearance from the capital.
The appellant district made two requests: That, having no history of voter misconduct, it should be exempt from Sect. 5 under Section 4(a) — the Act’s “bailout” provision — and that if Sect. 5 of the Act found the district ineligible for bailout, then Sect. 5 is unconstitutional.
These requirements for exemption from Sect. 5 according to Sect. 4(a) are not entirely clear:
“If the Attorney General determines that he has no reason to believe that any such [discriminatory] test or device has been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color, he shall consent to the entry of such judgment.”
The Federal District Court rejected both claims, arguing that Sect. 4(a) is available only to “political subdivisions” that register their own voters, and cannot be used by entities like utility districts that have an elected board.
The legislative provision requires federal approval for some states to change their voting laws. In particular, Section 2 of the Act states the following as unjust practices: “Voting qualification or prerequisite to voting, or standard, practice, or procedure […] on account of race or color.”
Prior to the Act, a typical discriminatory practice was to force voters to pass a literacy or scholastic test in order to vote.
Voting laws such as election procedure and venue change are specified in the Act and provision of multilingual ballots is mandated. Sect. 5 also orders that congressional districts should be drawn to incorporate minorities.
About 12,000 municipalities, cities and districts must seek oversight from the Justice Department when redrawing districts or adjusting voter ID procedure.
The Court ruled that if targeted municipalities throughout the South practice fair voting practices “the five years preceding the filing of the action,” then they may seek exemption from the law.
The evaluation procedure?
Again, “the Attorney General determines that he has no reason to believe that any such [discriminatory] test or device has been used.”
The Act is lingeringly repetitious and vague.
The Voting Rights Act was signed into law by President Lyndon B. Johnson in 1965 to prevent pollsters from discriminating against minorities. It applies to U.S. states that have a history of racial discrimination.
Chief Justice John Roberts announced the ruling. The decision was 8-1, with only Justice Clarence Thomas dissenting.
“Our usual practice is to avoid the unnecessary resolution of constitutional questions,” said Roberts in the Opinion of the Court. “We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of Section 5.”
Thomas concurred in part and dissented in part to the judgment.
He reasoned that Sect. 5 extends the powers of Congress beyond what is allowed by the 15th Amendment.
“Because the Court’s statutory decision does not provide appellant with full relief, I conclude that it is inappropriate to apply the constitutional avoidance doctrine in this case,” he writes. “The ultimate relief sought in this case in not bailout eligibility — it is bailout itself.”
The case was the final of 3 announced on Monday and significantly more time was allocated for the reading of the opinion.
While Justices Kennedy and Stevens read the opinions for the first 2 cases, Roberts read the majority opinion of the Court for the voting rights case.
The first 2 cases were less controversial. When the third was announced, a murmur arose throughout the courtroom.
The atmosphere tensed and silence settled as Roberts began, calmly and slowly in colloquial terms, to explain the decision.
Roberts was straightforward, noting that when it was first enacted, the Act was meant to last no more than 5 years.
The Act “goes beyond what is prohibited by the 15th Amendment,” said Roberts, in vein strikingly similar, but not as direct, as Thomas’s opinion.
Many view the Act as an extension of the 15th Amendment, in its language and objective.
Roberts said that most barriers to equal voting rights have been “abolished,” that “blatant discrimination” is rarer — an indication that the Act has been successful. He noted that states once marred by underwhelming minority voter turnout have taken great strides to approach equality.
"Today, the registration gap between white and black voters are single digits in the covered states," he added.
The ruling was consummately un-instructive to laymen.
On the executive side, the Act has been consistently supported. Roberts noted that the Bush administration extended the Act by 25 years in 2006. The Obama administration has said that it would not support repeal of the Act.
The Federal District Court and the Supreme Court ruled that this extension is constitutional.
Critics of the Voting Rights Act argue that it fosters excessive federal oversight in a process that is meant to be left to the discretion of states. Judicial conservatives were disappointed by the by how indecisively the Court had ruled.
Despite nimble footwork, Roberts — and the Court — did not dismiss the “constitutional concerns” the Act poses.
The Voting Rights Act is arguably of questionable constitutionality. It unfairly detracts from the sovereignty of individual states along geographical lines by imposing restrictions on some and granting others the benefit of the doubt. It embodies legislated regionalism and unfairness.
The Act mashes and thus obscures the distinction between social progress reform and constitutional law. There is evidently a nagging constitutional question with the Act, as Roberts admits. It is merely biding time as an unjust remnant of a foregone era.
Its application has become tenuous and arbitrary, and tries to synthesize unquantifiable information into coherent executive (and, apparently, judicial) policy. It not only infringes on states’ rights, but also unevenly mandates incentives and disincentives.
Political commentators on the left and right have smugly reacted to the conservative backlash against the ruling. In a New York Times op-ed piece, Ramesh Ponnuru argues that Thomas’s nay vote is hypocritical, that it is a form of judicial activism reminiscent of what conservatives blast Supreme Court nominee Sonia Sotomayor for advocating.
The Supreme Court can’t pass legislation; it can’t draft bills and it can’t issue executive orders. But its constitutional functions are to ensure the constitutionality of the other two branches of government and to be the highest appeals court for civil and criminal cases. If there weren’t deciding constitutional questions arising in district courts then the U.S. wouldn’t need a national court for review of difficult cases and the most brilliant — and nuanced — legal minds wouldn’t be employed to analyze them.
For any constitutional democracy this service is imperative: The Supreme Court is a federal review system, meant to affirm and protect the rights of Americans at the federal level, as granted by the Constitution.
It should be repeated that Bush extended the Voting Rights Act in 2006. One could construe Thomas’s dissent by saying that he believes the executive order is “outdated.” But is that really his position?
Not necessarily. Instead, Thomas identified a gross constitutional infraction that he could not overlook with good conscience. He was not advancing or detracting a political agenda, as judicial activists are wont to do. He was being constitutionally responsible and, at the most fundamental level, doing his job.
The Voting Rights Act was born in the executive branch but it will not be terminated by the executive branch — at least not anytime soon. Though the judiciary should not definitively decide such mandates, American citizens can’t rely on the perpetually and increasingly inert executive and legislative branches to reassess or scrap orders that are unconstitutional and outdated.
Of course, a noble cause underlies the Voting Rights Act; to extend basic rights to those who are unfairly treated in the hands of bigotry and malice. But it’s time that this temporary measure — at minimum Sect. 5 — is struck down in light of its vestigial and meddling status — not by the judicial, but by the executive branch.