John Roberts, SCOTUS

The Roberts Court Saves Section 5 of the Voting Rights Act

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Don’t you love it when the Supreme Court of the United States makes a concerted effort to avoid constitutional issues? Today, Chief Justice John Roberts got seven other justices together in a truly remarkable display of ignoring an elephant in the room. The WSJ Law Blog reports:

It’s in the waning days of June that the Supreme Court winds up its business for the term, typically with its most high-profile decisions. Today, one such decision was handed down from on high — the case known as Northwest Austin Municipal Utility District v. Holder.
At issue in the case was the constitutionality of section 5 of the 1965 Voting Rights Act, which requires governments in so-called “covered” jurisdictions — state and local governments in areas that once practiced discrimination — to “preclear” changes in election procedures with the Justice Department to ensure that minority voters are protected….
Supreme Court followers and commentators had expected a narrow ruling in the case, with the constitutionality of section 5 possibly turning on the vote of Justice Kennedy. But the Court threw everyone a curve-ball, ruling 8-1 in an opinion written by Chief Justice Roberts that drew a narrower path — keeping Section 5 in place, but allowing the “covered” jurisdiction at issue — a utility district in Austin, Texas — to apply for exemption from the law.

After the jump, SCOTUSblog tells us that by avoiding the constitutional issue, the Court has put Congress on notice that it needs to get off of its ass if it expects section 5 to survive much longer.


The take from SCOTUSblog is that Roberts was not being ambiguous at all:

The decision unambiguously served notice that the Justices are prepared to invalidate the statute as it stands. Congress is now effectively on the clock: it has the period between now and the date that it decides a follow-on challenge by a covered jurisdiction that is not permitted to “bail out” of the statutory scheme to amend Section 5. If the statute remains the same by the time the next case arrives, the Court will invalidate the statute.
Today’s ruling is thus as much subtext as text. An entire section of the opinion is devoted to the constitutional infirmities of Section 5. There is no counter-point. Nor do any of the Court’s more liberal members issue a reassuring concurring opinion indicating that Section 5 would survive a constitutional challenge – though some surely believe it.

The Law Blog has a great interview with election law specialist Rick Hasen. Even he is surprised:

What was the middle ground reached here?
It’s kind of technical, but the court didn’t rule on the constitutionality of the section. Instead, the court found that this utility district can ask that it be let out of coverage of section 5. In other words, that it no longer have to seek preclearance whenever it makes a change in its voting procedures.
Why didn’t you foresee this middle ground?
Primarily because the statute is written pretty clearly that only states and other jurisdictions that register voters can ask for this bailout. It’s not something that’s supposed to be afforded smaller jurisdictions like this utility district. In a 1980 case called City of Rome, the court essentially held the same thing.
Yet the court found a way to see this interpretation was no longer one it needed to follow.

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But according to SCOTUSblog, this decision is yet another indication of how things are going to be done in Mr. Roberts’s Neighborhood:

The Court’s opinion will go down in history I think as among the Chief Justice’s most significant, and a model for his philosophy of judicial minimalism, which plays out in this case in two separate respects. First, the Court gives Congress in the first instance the opportunity to exercise its constitutional responsibility to apply the Constitution. Second, the opinion brings together a wide majority of eight Justices for a result with which they can all agree.

Roberts managed to take a 5-4 decision one way or the other, and turn it into an 8-1 slam dunk (Thomas dissented — nobody seems to care why). That seems like a good day’s work.
Now we’ll see if Congress can do its job and fix the thing.
Quelle Surprise! The Unexpected Ruling that Saves Section 5 [WSJ Law Blog]
Analysis: Supreme Court Invalidates Section 5’s Coverage Scheme [SCOTUSblog]
Earlier: Chief Justice John Roberts: The Elephant in the SCOTUS Courtroom?

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