America Is One Step Closer to Neutering the Voting Rights Act

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No, the world won't end without Section 5 of the federal law. For minority voters still subject to discrimination in voting, it will just look an awful lot like it did decades ago.

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Voters in Brimingham, Alabama, 1963. (Horace Cort/AP)

You could say that the call was made even before the polls closed. It was made with great clarity before the end of the scheduled hour of oral argument at the United States Supreme Court in Shelby County v. Holder by the folks at Scotusblog, the most popular and prestigious website covering the Court. It was presented in 140 characters or less to the world in the form of a Tweet: "Update from argument: VRA Sec 5 almost sure to be invalidated 5-4. Congress will have to reconsider the preclearance formula."

There are some instances where oral argument is useless in determining how a case will turn out. This does not figure to be one of those times. There look to be five votes to strike down the section of the law that requires officials in some jurisdictions to prove to the satisfaction of federal officials that their voting laws and redistricting rules do not discriminate against minority voters. We can be reasonably certain about this not just because of the questions and the answers offered up Wednesday but also because of the history of the Roberts Court and the Voting Rights Act.

Chief Justice John Roberts, who campaigned against the law 30 years ago as a young Justice Department official, isn't going to save the statute the way he saved the Affordable Care Act last June. Justice Clarence Thomas declared four years ago that it had to go. Justice Antonin Scalia on Wednesday declared the most successful anti-discrimination law in American history the perpetuation of a "racial entitlement." Justice Samuel Alito echoed on Wednesday many of the same concerns he expressed during argument four years ago in a Section 5 case out of Texas.

That's four votes. The fifth would be Justice Anthony Kennedy, the least conservative of the five Republican appointees. Lyle Denniston, a reporter who has daily covered the Supreme Court since before the passage of the 1965 law, wrote Wednesday of some wiggle room he perceived in a comment Justice Kennedy made about how the plaintiff in the case -- Shelby County, Alabama -- may not be in proper position to challenge Section 5 (or the preclearance coverage formula of Section 4) because of its past record of voting discrimination.

The voter suppression efforts of the 2012 election are a preview of coming attractions.

"If you are covered under any [Section 4] formula then why are you injured under this one?" Justice Kennedy asked Shelby County's lawyer. This is the slender reed upon which the hopes of supporters of the federal law will have to rest over the next few months. And it comes from a justice who has consistently expressed his concern that Section 5 is constitutionally dubious because it treats different states differently. "Yet the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio," Justice Kennedy said during oral argument in 2009 in Northwest Austin v. Holder. "The sovereign dignity of Alabama is less than the sovereign dignity of Michigan."

In any event, you can judge for yourself. Here is the link to the transcript.

It never shocks me when Denniston is correct. I certainly wouldn't bet against him. But my sense is that there will be no last-minute vote switch this time. There will be no ideological compromise. The Court won't exercise judicial restraint in the face of clear legislative intent. In other words, it doesn't matter that the Senate renewed the law by a vote of 98-0 in 2006. It doesn't matter that the House of Representatives passed it by an enormous margin as well or that President George W. Bush held a signing ceremony. This Court clearly has had it in for this law for years now, and will, within the next four months, gut its most effective provision.

So while we wait for the details -- the Court will issue its ruling at the end of June -- it's now time to contemplate a world without Section 5 of the Voting Rights Act. It is a world where some of the least powerful or politically influential Americans will again bear the burden of lengthy and expensive case-by-case litigation to protect themselves from the discriminatory impact of new, partisan voting laws. It is a world where the federal government's power to protect minority voting rights will be neutered. It is a world in which the voter suppression efforts of the 2012 election are a preview of coming attractions.

Here are five things to watch as this unfolds:

1. Punt back to Congress. Because they are, after all, politicians, the Court's conservatives won't likely forbid any future "preclearance" rules under Section 5. In other words, they will not likely declare that it is always and forevermore unconstitutional for Congress to determine that officials in some jurisdictions have to justify their election rules to the Justice Department, or to the federal courts, before implementing them. The Court more likely will say that Congress must reconsider those rules -- update them, refine them, justify them factually with more recent data and statistics -- in light of the Court's mandate.

2. Congressional inaction. As a matter of law, such an invitation to Congress -- your law is broken, legislators, but you have the authority to fix it -- makes perfect sense. The Supreme Court (and other courts) often invite lawmakers to restore statutes to constitutional status. And quite often lawmakers do fix their laws. As a practical matter, however, such an invitation from the justices would be more like a dare. A Congress that today cannot adequately perform even the most basic of functions of government will be called upon to enact a newly constituted and highly partisan voting law. You'd be wise to bet the "over" on a presidential signing day.

The Court's conservatives know how unlikely it is that Congress will be able to accomplish this anytime soon. All it would take to stop it would be one Republican senator filibustering, right?. This understanding is not lost upon many Southern politicians who for decades now have consistently voted to renew the law. They will get the best of both worlds -- they will get to see the death of Section 5 without having their fingerprints on the weapon that killed it.

For example, in Alabama, Sen. Jeff Sessions voted to renew the Act in 2006. Think he's going to vote for a new and improved Section 5 after the Supreme Court invalidates it? Me either. The ruling will give him and many others the political and constitutional cover to do nothing.

3. Nationalizing Section 5. One answer to the Court would be to simply nationalize Section 5 -- to make it apply to every jurisdiction in the nation. In other words, to have the Voting Rights Act require officials in Ohio and Pennsylvania -- states where there was discrimination against minority voters in the last election cycle -- to "preclear" their new election and voting rules the way Southern officials have had to do for decades. Such a broad approach might satisfy at least one of Justice Kennedy's concerns, the one about the state officials needing "equal protection" from federal authority when it comes to voting laws.

There is much merit in such a path. But here it is worth remembering what Representative Henry Hyde once said about the Voting Rights Act. The legendary Republican from Illinois warned 30 years ago about "strengthening the law to death" by expanding it across the nation. Can't you just hear the federalism arguments that would be made against such an expansion?

And even if such a measure somehow passed can you imagine the burden it would place on federal officials-- both at the Justice Department and within the federal judiciary -- to enforce it? Moreover, this Supreme Court is all about decreasing federal authority -- not enhancing it.

4. Minorities exposed. In the meantime, while Congress dithers over how to respond to the Court's decision striking down Section 5, and with a Supreme Court openly dismissive of broad evidence of recent voter discrimination, minority voters will once again be exposed in a way they haven't been for decades. They will have to rely upon Section 2 of the Voting Rights Act, which means that they will have the burden of proving that new laws are discriminatory. And they will have to do so primarily in the very jurisdictions which Congress declared ought to be covered by the preclearance provisions of Section 5.

Not only that, but the death of Section 5 will undoubtedly mean more aggressively partisan and discriminatory laws will be enacted. In other words, the coming rule will decrease protection for minority voters while at the same time encouraging discriminatory practices.

This point was made forcefully last summer by U.S. District Judge John D. Bates, an appointee of President George W. Bush. In protecting South Carolina citizens from an onerous new law, in a Section 5 case that was virtually ignored during Wednesday's oral argument, Judge Bates wrote:

One cannot doubt the vital function that Section 5 of the Voting Rights Act has played here. Without the review process under the Voting Rights Act, South Carolina's voter photo ID law certainly would have been more restrictive. Several legislators commented that they were seeking to structure a law that could be precleared.

5. The South rises again. I am no historian. But the looming death of Section 5 will feel a lot like the death of Reconstruction. During Wednesday's argument, the lawyer for Shelby County, Alabama told the justices that "the problem to which the Voting Rights Act was addressed is solved."

Such a statement not only distorts the factual record in the case -- Shelby County and Alabama in particular continue to perpetuate patterns of racial discrimination in voting-- but it also ignores what we've all just seen with our own eyes in the 2012 election. And it ignores, too, as Justice Elena Kagan noted during Wednesday's argument, the powerlessness of the Court to declare an end to racial discrimination. Who's the judicial activist now?

In the mind of these advocates, the Voting Rights Act is unjustifiable not because it's no longer needed or used -- no one can deny that it is -- but rather because as a matter of "sovereignty," the jurisdictions covered by Section 5 have since 1965 done enough to reduce discrimination in voting. The South, in other words, doesn't want to play -- or pay -- anymore for the worst vestiges of its past.

We saw that 150 years ago. Only this time, it's not Congress or the White House or a receding Army of Occupation which is going to allow these officials to back away from a commitment to racial equality in voting. This time, it looks like the Supreme Court will.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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