This narrow ruling saves the VRA from a constitutional test that it almost certainly would lose. The challenge to the 44-year-old law by the Northwest Austin Utility District created a perfect vehicle for testing the constitutionality of the Voting Rights Act. It seemed clear at oral arguments that a majority of the court doubted the constitutionality of the law, but the court's conservatives, except for Justice Clarence Thomas, were reluctant to strike down a law that has transformed American elections (see Barack Obama, 2008). It seems likely that this reprieve for the VRA was the work of Chief Justice John Roberts, who wrote the majority opinion signed onto by conservative and liberal justices.
Section 5 of the law presents several problems. The law singles out several electoral districts (whole states or individual counties, mostly in the South) for special treatment. These electoral districts must pre-clear any changes in election laws or procedures through the U.S. Justice Department. This singling-out conflicts with the equal protection clause of the 14th Amendment, the very clause upon which much civil rights legislation is based. The law also usurps the authority of the states to determine their own election procedures, as specified in the Constitution.
The most glaring problem with Section 5 is that it pretends nothing has changed since 1964. The affected jurisdictions are those where minorities were under-represented in voter registration in 1964. When Congress reauthorized the Voting Rights Act for another 35 years in 2006, it did not re-examine voter registration to determine which jurisdictions were discriminating against minorities. It used the 42-year-old voter statistics from 1964. Anyone who thinks electoral politics in the South has not changed since 1964 is disconnected from reality.
With its diplomatic decision not to rule on the constitutionality of an iconic landmark of civil rights, the court has given the Voting Rights Act a reprieve, but Congress should take the hint and revise the VRA. Its provisions for ensuring fair and open voter registration and voting should remain, but its pre-clearance provision should be revised to reflect current conditions, not the long-buried statutory segregation of the 1960s. Pre-clearance was designed as a means of punishing those states and other jurisdictions that refused to open the voting process to minorities and that built fanciful new obstacles each time an old obstacle was struck down. At the time, such punitive measures were probably justified, but they aren't today. Those jurisdictions are now electing minority sheriffs, commissioners, legislators and members of Congress. In many cases, minorities now control the reins of power.
The VRA includes a "bailout" provision for jurisdictions that are no longer discriminating, but that provision has been narrowly interpreted. Wilson County is subject to pre-clearance, and when I asked 25 years ago why the county, which had elected minorities at-large, did not apply for bailout, I was told that the procedure was hopeless and any effort would be futile. Since 1965, I have read, only 17 jurisdictions have successfully sought bailout.
The VRA, which has been called the most effective civil rights legislation in history, today has a primarily symbolic purpose. If Congress wants to keep that symbol in place, it must revise the law to comply with the Constitution and with simple logic before the Supreme Court has another opportunity to consider the law's constitutionality.
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It is interesting to note that the states of NORTH CAROLINA, ARIZONA, CALIFORNIA, LOUISIANA, MISSISSIPPI AND NEW YORK filed a joint amicus brief with the court in this case, arguing in favor of upholding the 2006 reauthorization of the VRA. They argued that “any assertion that Section 5 constitutes an undue intrusion on state sovereignty does not withstand scrutiny … administrative preclearance is expeditious and cost effective. The process is neither difficult nor complicated. Rather, Section 5 preclearance is one of the most streamlined administrative processes within federal government … the preclearance process affords covered jurisdictions real and substantial benefits. First, the preclearance process encourages covered jurisdictions to consider the views of minority voters early in the process of making an election law change. This involvement has minimized racial friction in those communities. Second, the preclearance process has helped covered jurisdictions in identifying changes that do in fact have a discriminatory effect, thus allowing them to prevent implementation of discriminatory voting changes. Third, preclearance prevents costly litigation under Section 2. Preclearance provides an objective review of a State’s election law changes. That review process tends to diminish litigation challenging election law changes."
http://moritzlaw.osu.edu/electionlaw/litigation/documents/NWAustin-Brief17-3-25-09.pdf
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