Commentary Magazine


Could It Be?

On Wednesday the Supreme Court heard oral argument in a landmark case seeking to strike down as unconstitutional Section 5 of the Voting Rights Act. The mainstream media (aptly described by Roger Clegg) is apoplectic over the possibility of the Court declaring the country is not as it was in 1965 and there is no longer justification for the onerous federal oversight of state and local elections in the states and jurisdictions covered by the Act.

Rick Hasen, a very smart election lawyer sympathetic to retention of Section 5, writes:

I think the best that supporters of section 5 can hope for is a controlling opinion by Justice Kennedy, perhaps speaking only for himself, finding a way to read the statute to allow bailout and ducking the constitutional question. I still think that is unlikely. The more likely scenario is 5 votes to strike down the Act. Chief Justice Roberts, and Justices Alito, Scalia and (presumably) Thomas are surely there. Justice Kennedy expressed considerable skepticism of the federalism costs and “substantial burdens” being imposed on some jurisdictions but not others, without adequate comparative evidence that such laws are still necessary. If this happens, it could well be that congress comes back to write a new (and perhaps even better) Voting Rights Act. But, as I noted i. . . depending on how the Court writes its decision, Congress’s ability to maneuver in this area could be constricted.

And a highly knowledgeable conservative onlooker who attended the oral argument  writes to me:

If I were to bet, I am awfully sure there are 5 votes to reverse the district court and ________.  Do “what” is the big question.   It seems to me that the most likely scenario is that four justices are willing to reverse and find that the absence of a bailout provision for the plaintiff renders Section 5 unconstitutional and never reach the coverage formula, and if they do reach it, strike it down as unconstitutional.  Kennedy seems inclined to reverse and remand and demand an evidenciary finding that the 2006 reauthorization was congruent and proportional because a study of discrimination in covered vs. non-covered jurisdiction was not done.  Kennedy may be willing to go futher and join the Scalia/Thomas/Roberts/Alito bloc, but it wasn’t clear to me.

If the Court does strike down Section 5, it would be a monumental testament to the racial progress the country has made. And could there be a more fitting time for such a ruling?