To judge from the early reports of today’s arguments at the Supreme Court – and all the usual caveats apply about being careful about reading too much into what is said at argument – the Court seems prepared to invalidate section 5 of the Voting Rights Act. That is the section that imposes a “preclearance” requirement on “covered jurisdictions,” such that any change in voting procedures in those jurisdictions must be approved by the Justice Department before they can take effect.
The preclearance requirement has long been hated by the right, and its invalidation would (correctly) be seen by them as a huge victory. Nothing sticks in a wingnut’s craw more than the idea of some 20-something lawyer in the Justice Department’s Civil Rights Division preventing a state from changing its laws as it sees fit. And, indeed, section 5 was an extraordinary and (I believe) unprecedented remedy – which, needless to say, was justified by the extraordinary lengths to which certain jurisdictions were going to deny some of their citizens the right to vote.
A couple of years back, the Supreme Court had the opportunity to rule on section 5, but it declined to do so, instead issuing an 8-1 opinion by Chief Justice Roberts that unquestionably laid down some markers for the next case (which is the one argued today) while deciding the case itself on narrower grounds. Here are some key excerpts from that 2009 opinion:
Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.
These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements. It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.
The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” … [A] departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets….
The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide…. The Act’s preclearance requirements and its coverage formula raise serious constitutional questions….
That last point – that other jurisdictions may be as bad or worse than the covered jurisdictions – is an important one, and recent events such as the voter ID fiasco in Pennsylvania (among other places) are pretty good evidence in its favor. Whether that means that section 5 should now be found unconstitutional, I am less certain. It would be a sad irony indeed if recent voting-related shenanigans by Republicans in non-covered jurisdictions contributed to the invalidation of a key provision of the Voting Rights Act on the grounds that things suck everywhere now.
In any event, the prediction here (and in many other places) is that the Supreme Court will invalidate section 5 by a 5-4 vote in an opinion authored by Chief Justice Roberts. When that happens, look for many of the same people who, in the wake of the Obamacare decision, were absurdly falling over themselves to declare Roberts the savior of the Court (if not the entire Republic) and the greatest statesman currently in public life, to castigate him in equally harsh terms. To those people – I’m looking at you, Larry Tribe, Chris Matthews, Jeff Rosen, Gillian Metzger – I say this: you got snookered. Roberts, IMHO, knew exactly what he was doing with respect to Obamacare, and it had very little to do with statesmanship or any other high-minded purpose. It had everything to do with preserving the Court’s “political capital” for what Roberts considers to be more important battles. Gutting the individual mandate (which, as we’ve discussed, is not really a mandate at all) was not really worth the brouhaha it would have caused. But finally realizing a career-long dream of gutting the Voting Rights Act – now that would be worth it.