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Contentions

Voting Right Act Survives — Sort of

In an 8-1 decision, the Supreme Court upheld the constitutionality of Section 5 of the Voting Rights Act but held that any subdivision or state can elect a “bailout” from its provisions. Although the Court did not, as many conservatives hoped, strike down Section 5, all the justices found “serious constitutional concerns” — or in the case of Justice Thomas, actual ones — which could, in future litigation, invalidate the entire pre-clearance regime. All justices rejected the notion that discriminatory conditions at the time of the Act’s original passage in 1965 are sufficient to insulate it from challenge. Lyle Denniston at Scotusblog had this take:

In the next few years, either a local government that tries but fails to get out from under Section 5’s controls, or a state government covered by the law but convinced it should not be any more, would have quite a good chance of renewing the constitutional controversy that the Court did not decide.  The main opinion, in fact, provides what could easily be read as a roadmap for such a future constitutional complaint.

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.

Todd Gaziano, of the U.S. Commission on Civil Rights and Heritage, writes:

All justices also agreed that its prior decisions upholding the pre-clearance provision are no longer valid today and that the renewal of this provision, which constitutes a unique intrusion on the states, must be justified by current needs and conditions. Eight justices also agreed that the differentiation between covered and non-covered jurisdictions “may no longer be justified.” Justice Thomas, the only justice who did not join Chief Justice Robert’s opinion, would go further. He wrote that the Act not only was unconstitutional but that the Court should have so held.

It would have been a very big deal indeed to invalidate the Voting Rights Act. Perhaps Chief Justice Roberts, who chose to write the majority opinion himself, wanted to avoid a controversial 5-4 decision in favor of a more united roadmap that would give direction to both Congress and future litigants. In any event, it will be up to future Supreme Courts and new justices to determine whether the federal government can still micromanage a select group of states and jurisdictions more than forty years after passage of the Voting Right Act, and after the country has elected its first African American president.


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