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Voting Rights Act Survives Roberts' Supreme Court Challenge - Barely

June 22, 2009

In a highly anticipated ruling today, the United States Supreme Court preserved - for now - the Voting Rights Act of 1965. While its 8-1 decision enabled municipal governments to opt out of Section 5 federal "pre-clearance" requirements for 16 mostly Southern states, the majority opinion avoided the larger constitutional issue. Which means that the long conservative campaign to suppress the overwhelmingly Democratic minority vote is far from over.
As the Washington Post reported this morning, the case (Northwest Austin Municipal Utility District v. Holder) was brought by conservative activists looking to end the Justice Department's role in pre-clearing voting changes in states with a legacy of curbing the franchise for African-American voters. Ironically, it was Chief Justice John Roberts who wrote the majority opinion which sidestepped the "difficult constitutional question we do not answer today."
Ironic, that is, not merely because Roberts expressed deep skepticism about the law's continued relevance and constitutionality during oral arguments in April, but because of his own past opposition to the Voting Rights Act during his tenure in the Reagan administration.
During his confirmation hearings in September 2005, John Roberts had to address his past advocacy. As the New York Times recounted:

But the most pointed back-and-forth was between Judge Roberts and Senator Edward M. Kennedy, Democrat of Massachusetts, who pressed the nominee on his commitment to the Voting Rights Act, which has been widely credited with enabling many black Americans to vote, especially in the South, and consequently increasing minority representation in government.
The senator recalled that, when the nominee was a Reagan administration lawyer in 1982, he wrote a memorandum embracing the administration's stance that sections of the Voting Rights Act should be enforced according to whether discrimination was intended, as opposed to whether discrimination was the effect...
Judge Roberts replied cautiously. In 1982, "I was still working for the administration, Senator," he told Mr. Kennedy.
If a voting-rights issue came before him today, "I would, of course, confront that issue as a judge and not as a staff attorney for an administration with a particular position on that issue," he said.

When the Austin case was heard this spring, however, the Chief Justice gave every indication his views from the days as a foot soldier in the Reagan revolution were unchanged. "I mean, at some point," he said, "it begins to look like the idea is that this is going to go on forever." Robert also asked:

"Are Southerners more likely to discriminate than Northerners?"

And yet the Roberts Court defied expectations, ruling narrowly and averting a likely 5-4 split and averting the controversy certain to follow the striking down of the landmark civil rights bill. Still, Roberts' language at times echoed the lone dissenter, Clarence Thomas ("The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains"), suggesting that the fate of the Voting Rights Act is far from secure:

Roberts himself noted that blacks and white now register and turn out to vote in similar numbers and that "blatantly discriminatory evasions of federal decrees are rare."
He attributed a significant share of the progress to the law itself. "Past success alone, however, is not adequate justification to retain the preclearance requirement," Roberts said.

And to be sure, the all-out war on minority (read "Democratic") voters by the Bush administration and Republican is far from over. As I detailed previously ("Divide, Suppress and Conquer"), driving down the participation of overwhelmingly Democratic black and Hispanic voters through onerous registration barriers, draconian voter identification laws, unprecedented redistricting, ballot-box challenges and election day dirty tricks remains as an essential GOP electoral strategy. For its part, the Bush Justice Department overruled its career voting rights attorneys to bless the harsh Georgia ID law, instead bringing a rare Voting Rights prosecution on behalf of white voters in Noxubee County, Mississippi.
For its part, the Court in the wake of its 6-3 ruling last year in support of an Indiana voter identification law seemed almost certain to strike down the Voting Rights Act. (Appeals Court judge Terence Evans noted the obvious in his earlier dissent, "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic."). Perhaps the Court's restraint today was evidence - finally - of what Sonia Sotomayor critic Jeffrey Rosen had once praised as John Roberts' vaunted judicial temperament and commitment to seek unanimity.
More likely, Roberts and his conservative allies are biding their time, waiting for a better case to bring down the Voting Rights Act once and for all. And to be sure, the Republican faithful nationwide are certain to offer them that opportunity.

One comment on “Voting Rights Act Survives Roberts' Supreme Court Challenge - Barely”

  1. I think the most pertinent question now is: "Are Republicans more likely to discriminate than Democrats?" The answer to that question is indisputably "yes."


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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