Supreme Court “Dodged a Bullet” In Leaving Voting Rights Act Intact, Persily Says


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New York, June 22, 2009 – The Supreme Court “punted” when it ruled a small Texas voting district could be exempt from a major provision of the Voting Rights Act, but stopped short of deciding whether the provision is unconstitutional, said Columbia Law School Professor Nathaniel Persily, one of the nation’s top election-law experts.
Persily, the Charles Keller Beekman Professor of Law and Political Science, said the 8-1 decision in Northwest Austin Municipal Utility District v. Holder “opted for a narrow statutory holding” rather than taking a broader swipe at the Voting Rights Act.
“They punted. They basically decided not to deal with the controversial issues,” said Persily, whose 2007 Yale Law Journal article, “The Promise and Pitfalls of the New Voting Rights Act,” was cited in the majority opinion written by Chief Justice John Roberts.
“The Supreme Court dodged a bullet today in its decision concerning section 5 of the Voting Rights Act,” Persily said.
Section 5 requires eight states and parts of eight others – mostly in the South -- to get approval from the Justice Department before changing balloting procedures or the way they draw voting-district lines.
A utility district in Austin, Texas, which elects its commissioners, had sought to be free of Section 5 oversight, but was denied by a lower court even though it had no history of discrimination. The court ruled all local election units must be given the right to bail out of Section 5. Persily said the impact of the decision is muted.
“Very few jurisdictions have attempted to bail out from the VRA’s coverage in the last 25 years, so allowing smaller jurisdictions to bail out does not constitute a significant political or jurisprudential move,” Persily said.
Persily had attended the oral argument for the case in April, and came away believing the Court was inclined to strike down Section 5. Justice Anthony Kennedy noted then how much had changed since the 1960s, when Southern states used methods like literacy tests to keep blacks from voting. “Democracy was in shambles. That’s not true anymore,” Kennedy said.
“Based on the tenor and comments of the oral argument, supporters of the Act were justifiably fearful that the Court might issue a more aggressive opinion,” Persily said.
The lone dissenter on the case, Justice Clarence Thomas, would have held Section 5 unconstitutional.
Instead, Persily noted, the “critical constitutional questions underlying the Act will need to await another day for their resolution.”
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