Justices teeter on edge in voting rights ruling

While not striking preclearance section of act, high court leaves door open for district to get out from under the law

By Tony Mauro, National Law Journal

The U.S. Supreme Court on Monday stepped back from a major showdown over the constitutionality of the Voting Rights Act, ruling instead that because jurisdictions covered by the law can seek to be exempted from its provisions, it was unnecessary for the Court to decide whether the statute should be scrapped altogether.

The 8-1 ruling in Northwest Austin Municipal Utility District Number One v. Holder both surprised and pleased civil rights advocates, who were nearly certain after April oral arguments that the court was poised to strike down the law outright, eliminating what they view as a crucial weapon in the struggle for political equality. They feared that the law's success—symbolized by the election of an African-American president last November—would be the law's undoing, even though they argue it is still needed in some parts of the country.

“Without its protections, our nation would unnecessarily face the grave risk of significant backsliding and retrenchment,” said John Payton, president of the NAACP Legal Defense and Educational Fund, which participated in arguments in the case. “In light of the oral arguments, I am surprised there weren't seven different opinions going back and forth, there weren't five justices to say it was unconstitutional.”

Attorney General Eric Holder Jr. said Monday that the ruling “marks a victory for voting rights in America.” He added in a statement, “As a nation, we have made great strides in advancing and protecting civil rights in the past 44 years since the Voting Rights Act was first passed. But there is still more work to be done to fulfill the promise of full voting rights, free from discrimination, for all Americans.”

Also on June 22, the court ruled against environmental groups in a Clean Water Act case, Coeur Alaska Inc. v. Southeast Alaska Conservation Council, and in favor of special education advocates in Forest Grove School District v. T.A. With seven cases left to rule on before the term ends, the court will return to the bench Thursday and may adjourn for the summer after announcing decisions next Monday.

Chief Justice John Roberts Jr. wrote the opinion in the Voting Rights Act case for a surprisingly harmonious majority, alternating between praise for the law's success in increasing minority voting and skepticism about whether the part of the law in dispute is still needed. Under that preclearance provision, Section 5, covered jurisdictions mainly in the South, must seek Justice Department approval before implementing any change in election law or procedure that might dilute minority voting strength. The law was challenged in something of a test case by a Texas utility district with no record of voting discrimination.

“Things have changed in the South. Voter turnout and registration rates now approach parity,” wrote Roberts, adding that “Past success alone ... is not adequate justification to retain the preclearance requirements. ... [T]he act imposes current burdens that must be justified by current needs.” Elsewhere in the opinion, Roberts wrote that the preclearance requirement raises “serious constitutional questions” and impinges on the equal sovereignty of states.

In spite of those questions, the court stopped short of ruling on Section 5's constitutionality, invoking the doctrine of “constitutional avoidance,” under which the court will resolve a dispute on other grounds, if available. In this instance, the alternate avenue is for the Texas utility district to seek a “bailout” from the preclearance requirement by convincing a three-judge panel that it has not violated voting rights for the past 10 years. The lower court had ruled that, under the wording of the law, some political subdivisions like the utility district were not eligible for bailouts. But the Roberts ruling said all political subdivisions are eligible—opening the door for the Texas district and others like it to get out from under the law.

Justice Clarence Thomas, the court's only African-American member, dissented from the ruling, stating that he would have taken on the constitutional issue and struck down Section 5. “The extensive pattern of discrimination that led the court to previously uphold Section 5 ... no longer exists,” Thomas wrote. Admitting that the law is no longer constitutionally justified, he wrote, “is not a sign of defeat. It is an acknowledgment of victory.”

Payton said the court's focus on the bailout provision does not necessarily mean “there will be a stampede” of jurisdictions seeking to be freed from the preclearance provisions. He was also unfazed by the fact that seven justices—liberals and conservatives—joined Roberts' majority ruling that expressed serious doubt about the law's constitutionality. However grudging the majority's tone, Payton said, the fact that the court avoided striking down Section 5 when it easily could have done so is significant.

But others saw danger in the court's critical words, which could form the basis of a future challenge to the law. “The Supreme Court backed one step away from a very steep cliff today,” said Doug Kendall, president of the Constitutional Accountability Center, which filed a brief in the case supporting Section 5. “However, the court remained close to the edge.”

Former Federal Election Commission chairman Michael Toner, who now heads election law litigation at Bryan Cave, said he too was struck by that fact that “eight justices were willing to sign on to an opinion” containing such criticism of the statute. “I would not have predicted that Justice [David] Souter or [Stephen] Breyer would agree to that.” He predicted the constitutional issue “will come around again,” possibly even in the same case if the Texas utility district's bailout request is denied.

Gregory Coleman of Yetter, Warden & Coleman's Austin, Texas, office, who represented the utility district in the case, could not be reached for comment.

Sharon Browne of the Pacific Legal Foundation, which supported the challenge to the law, expressed disappointment in a statement Monday. “The structure of overbearing federal intrusion in other local elections remains in place. So the court stopped short of its duty to defend the constitutional principle that federal power is and should be strictly limited.”