Preparing for the Worst on the Voting Rights Act

Sometime in the next few weeks, the Supreme Court is expected to issue its ruling in Northwest Austin Municipal Utility District Number One v. Holder, a frontal challenge to the constitutionality of the preclearance provision of the Voting Rights Act. Under that section of the law, changes in election procedures in covered jurisdictions that might affect minority voting power must be submitted to the Justice Department for approval.  As we reported here on April 29, the Voting Rights Act got roughed up at oral argument.

So supporters of the law are bracing for defeat, and earlier this week the progressive Constitutional Accountability Center held a telephone panel discussion to discuss how the case might turn out. The center also released a new report on the history of Section 5 of the 14th Amendment -- a history that it claims supports broad congressional power to enforce voting rights.

The panelists voiced strong pessimism about the outcome of the pending case, and previewed how they'll react if the decision is as bad as they fear it will be. If the contested provision of the act is struck down, the center's president Doug Kendall said, it will be a "starkly activist decision" because the Court will be trumping clear congressional authority. Former judge Patricia Wald of the U.S. Court of Appeals for the D.C. Circuit said the law is "an absolutely fundamental aspect of voter protection" that is still necessary even after an African-American has been elected president. David Gans, author of the center's report, said a ruling against the law "should frame this summer's confirmation hearing" for Supreme Court nominee Sonia Sotomayor.

Yale Law School professor Akhil Amar said the Voting Rights Act "has the blood of martyrs on it," and is "one of the most important statutes in world history." Before the arguments, Amar said he thought the Court "could not be so obtuse" as to strike the law down. But when he  heard the audio of the arguments, he said, "My heart sank." The dismissive tone of several justices about the law was unnerving, Amar said. "It really did shake me."

Asked about all the pessimism, Kendall said, "We'd be delighted if the conventional wisdom proved to be wrong," but he remains doubtful of victory. Soon the answer will be known.

Comments

[John Guest]

As a non-lawyer, but someone who reads and appreciates the wisdom of our constitution, and who has seen most of this great land, I do not see how the Federal government can pass laws that only apply to a few specific states. I never have.

As a Southerner traveling across this country, I have experienced discrimination in Massachusetts and in New York and in California that is equal to anything I have experienced in the last 20 years in the South.

In fact, the Justice Department as acted in recent a decision to threaten the validity of votes in Georgia by blocking the state from requiring proof of citizenship for those registering to vote. This was done through the Voting Rights Act's power. We do not need to hand over our cherished right to vote in elections to non-citizens.

[Jack Schmidt]

In order for VRA to still be constitutional, it has to have been reauthorized by Congress. It was.

[Asher]

I don't see what the blood of martyrs or the VRA's supposedly world-historical importance have to do with anything. No one's contesting that it wasn't, at one time, a vital and eminently constitutional statute. But in order for the VRA to still be constitutional, there has to be a certain quantum of intentionally, I repeat, intentionally discriminatory acts that justifies Section 5, a statute that doesn't discriminate between voting changes that are discriminatory and changes that just happen to be retrogressive. It's very simple. The 15th Amendment only bars intentional discrimination, not the incidental relocation of polling places or switching from a districting plan with 20 majority-black districts to 19. In order for Section 5, which does bar these things, to be constitutional, there must be enough intentional discrimination that Congress can reasonably claim it's justified in using a disparate impact rule. Otherwise, it's beyond their enforcement power. And in the record Congress made, there just isn't much evidence of intentional discrimination.