By a vote of 8 to 1, The Supreme Court upheld Section 5 of Voting Rights Act, but says that it raises "serious constitutional questions" and that localities can "bail out" if practices survive scrutiny.
That suggests that the Court wants a new challenge to the constitutionality of the provision, kicking the can down the road, in essence.
The lopsided majority is seen as a surprise, as is the opinion's author, Chief Justice John Roberts. During oral argument, he evinced considerable skepticism about the government's arguments that preclearing election procedures in localities with a history of racial discrimination was still necessary. Administration officials worried that Roberts intended to build a majority to strike down the entire provision.
Section 5 requires federal preclearance of voting procedure changes in places where minorities were discriminated against in the past. Congress overwhelmingly reauthorized Section 5 in 2006; most parts of the 1966 1965 Voting Rights Act are permanent.
The court did not explicitly rule on the constitutionality of the act, although it recognized that its implementation more than 40 years after passage of the Voting Rights Act raises "serious constitutional concerns," and that the "preclearance requirement represents an intrusion into areas of stateand local responsibility that is otherwise unfamiliar to our federal system."
The case involved an attempt by a small utility district in Travis County, Texas to seek relief from the preclearance provision. There had been no history of discrimination by the district itself. A court disagreed, ruling that only an entity that formally registers voters could apply for a so-called "bailout." The Supreme Court remanded the decision, concluding that a fair reading of the VRA's legislative intent did not mean to limit bail-out applications to those districts or municipal divisions that registered voters.
Justice Clarence Thomas dissented, arguing that the act had run its course and the conditions that allow its imposition no longer exist.
A Justice Department spokesperson said the opinion was being reviewed.
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is a former contributing editor at The Atlantic