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.
But southern state governments chafe under the special restrictions it places on them. Just to give one example of how pre-clearance works, consider that the Republican-led Florida legislature in 2011 sharply cut back on early voting in that state. Voting-rights groups sued to block the change, but failed. However, some parts of Florida are "covered jurisdictions." In those counties, the cutback in early voting was blocked by the Justice Department; after a court proceeding, the state had to agree to extend early voting beyond its original plan. Meanwhile, Pennsylvania, not being "covered," did not have to defend its voter ID law in federal court, though voter groups blocked much of it under state law in state court.
In a 2009 case called Northwest Austin Municipal Utility District No. 1 v. Holder, a small utility district in Texas asked the Supreme Court to void § 5. They argued that the list of "covered jurisdictions," having been drawn up in 1965, was no longer "appropriate legislation." The court's only African American, Justice Clarence Thomas, signaled in a dissent in NAMUDNO that he considered § 5 unconstitutional. The rest of the court refused to reach that issue; but, in an opinion gaining eight votes, it signaled its impatience with § 5:
More than 40 years ago, this Court concluded that "exceptional conditions" prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.
On Friday, they agreed to answer it at last. The case will be argued against the sudden awareness that the electorate is no longer a sea of white with a sprinkling of black, brown, and yellow faces; that a candidate can win the White House with a minority of white votes; that southern states now produce congressional delegations made up of non-white Democrats and white Republicans; and that an African-American president was re-elected by an electorate only 72 percent white.
On election day, 2012, the court was reminded that "we are now a very different nation." Members of both parties in Congress, the Obama Administration, and civil-rights and voting-rights groups across the country will warn the court that there are powerful forces in the old Jim Crow lands who would like to blunt the march toward full participation by non-whites in politics. But other voices will subtly suggest that all this special treatment for minorities has gone far enough.
The court has found that suggestion convincing in the past. Its conservative majority seems primed to strike down affirmative action programs in higher education; § 5 "pre-clearance" may strike its members as another invalid "racial preference."
The Fifteenth Amendment, which is at the heart of this case, assigns to Congress, not the Supreme Court, primary responsibility for protecting the ballot from racial bars. But this Supreme Court shows nothing but contempt for Congress, and cannot be expected to defer. Oral arguments in this case may reveal how uncomfortable the court is with the new political landscape, and whether it wants to slam on the brakes.
There will be no discussion of angels on pins. The election's over, the charades are done.
We're getting down to business.
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