Three days after an election that dramatically tested the right to vote, the court sends a major signal to Obama and Congress.
On the day Barack Obama was reelected, the Supreme Court featured oral argument on technical legal questions, including, quite literally, the number of angels that can fit on the head of a pin. Outside the chamber, the two major-party candidates elaborately declined to discuss the court. Inside the chamber, the charade of political unconcern was equally elaborate.
Friday, the charade was dropped. Late in the day, the court granted review in Shelby County v. Holder, a direct challenge to a key part of the Voting Rights Act (VRA) of 1965. The court's decision in the case will give us a clue to how the conservative majority has reacted to the Democratic victory and the changing face of politics. Its decision to grant review immediately after the returns were in signals -- intentionally or otherwise -- that the court will remain an important political player in the transformed landscape of Washington.
Simply put, the question in Shelby County is whether the court will allow Congress to use its textual power under § 2 of the Fifteenth Amendment, or will the justices decide that they know best where the threats to the right to vote come from in the 21st century.
At issue in the case is the "pre-clearance" provision of the Voting Rights Act, § 5. The VRA as a whole forbids states from discriminating by race in any feature of their voting and election systems -- ranging all the way from registration procedures for individual voters to the system of congressional and legislative districts states draw for elections. Racial discrimination in voting is barred by the Fifteenth Amendment; § 2 of the amendment states that "Congress shall have power to enforce this article by appropriate legislation."
Under the VRA, if a state changes its election laws, any group of voters that believes it has been disadvantaged by a change can bring suit in federal court to block the change. The act was passed in 1965, however, a time when much of the South and parts of the Southwest in essence maintained apartheid voting systems. These systems excluded non-white voters, using discriminatory registration rules and deliberate gerrymanders in districting. It might have taken decades to dismantle that system by individual lawsuits. To confront the scale of the problem, the VRA designated some states and parts of states as "covered jurisdictions." (The designation was based on the percentage of minority voters who actually got to cast votes in the election of 1964; later, a few jurisdictions were added based on percentage of voters in 1972.)
Because of their history, the "covered jurisdictions" are placed under a special rule. Before they can make any change in their systems, they must obtain "pre-clearance" from the federal government. The state, in essence, has to prove that its new election rule, whatever it is, will not cause non-white voters to lose access to or influence in the election system. Individuals can still sue; but the change also has to go through scrutiny at the federal level whether there is a suit or not. That "pre-clearance" can be granted in two ways: A state can apply to the Justice Department for "administrative pre-clearance"; or, if it chooses, it can bring suit in the District Court for the District of Columbia. In either case, the state has to prove its new change would not harm minority voters.
The Voting Rights Act is one of the greatest success stories in the history of American civil rights law. Within a few years, barriers to the ballot tumbled in states across the South and West. The old elite of the Jim Crow South fought on; but the "pre-clearance" procedure stymied its attempts to neutralize political gains with new district lines, registration rules, or practices at the polling place. The freer political atmosphere in the South meant the growth of a two-party system and bi-racial House delegations. Four times, Congress has reauthorized the VRA, most recently in 2006, by a vote of 390 to 33 in the House, and 98 to 0 in the Senate.