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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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