The Coming Voting Rights Explosion

Having read the opinion in the voting rights case, I got a little bit of the feeling I did after the Israel-Hezbollah war of 2006. It ended unsatisfactorily for both sides and they're going to be at it again sometime. With a lot more cluster bombs and hostage taking.

Despite the bonhomie of the 8-1 opinion and even Clarence Thomas's dissent--all sides genuflected toward the Voting Rights Act of 1965 and all that it had done for the country--you got the sense that the inevitable showdown is coming: Eventually some jurisdiction is going to have a really good case for getting out from under the act and the Supreme Court is going to have to rule on why an emergency provision that was supposed to last just five years has now been extended to 2031.


I'm referring again to Section 5 of the VRA which requires certain jurisdictions, mostly in the South, to have any electoral changes precleared by the Justice Department or, more rarely, the D.C. Circuit. In the case of the Northwest Austin Utility District that brought today's suit, the Court was able to skirt the issue and announce without shame it was avoiding the big constitutional question for another day. You might think that a governmental body that didn't exist before 1987, that had never been accused of discrimination and that represented a liberal bastion like Austin would have a pretty good claim, but the high court was able to dodge the issue over various technicalities. That can't last forever. Eventually the court's gonna wind up deciding something that puts the issue back in the hands of Congress.

The whole opinion makes for pretty interesting reading, including Thomas's dissent where he tries to force the issue on the court. What's fascinating is that the eight caucasian members of the court came up with a pretty dry and prefunctory case for kicking the can down the road. Thomas's dissent is filled with the lurid history of the Ku Klux Klan and the grotesqueries used to deny Aftrican-Americans the right to vote, precisely the same history that liberals might cite for keeping Section 5. He notes that history in service of his larger point about how much has changed and why the emergency procedures of the mid 1960s should no longer survive constitutional muster. I didn't find Thomas's logic convincing that the court had to decide this question now or his belief, as I read it, that Section 5 must go entirely. Still, I left with some grudging admiration for his bucking Antonin Scalia and the Chief Justice, who presumably want Section 5 overturned or curtailed, and wanted everyone on board today. Thomas is known for his silence during oral arguments but not today.

My friend and former colleague Abigail Thernstrom makes the case against Section 5 here.

The New York Times makes a case for it here.