Voting Rights Decision May Set Stage for Showdown between Congress, Supreme Court

 

New York, June 23, 2009 – In upholding a crucial piece of the Voting Rights Act, the Supreme Court may have sparked a battle of wills between the judiciary and Congress over who should alter the landmark civil-rights measure, experts at Columbia Law School said.

 

The 8-1 decision in Northwest Austin Municipal Utility District v. Holder on June 22 dealt with the part of the Act that requires federal oversight of ballots and election procedures in all or parts of 16 states where minorities historically suffered discrimination. The provision had been attacked as outmoded and beyond the power of Congress under the 15th Amendment, which guarantees the right to vote.

 

However, the decision by Chief Justice John Roberts did not address, as many court watchers had expected, the constitutionality of Section 5, the provision of the Act in question. The court ruled only that all election districts can apply to “bail out” from federal oversight. That was by design, said Professor Nathaniel Persily, the Charles Keller Beekman Professor of Law and Political Science.

 

“This decision was political in the best sense of the term,” Persily said. “The Chief Justice built a consensus around a narrow position that afforded some relief to the aggrieved party and did so without shaking the foundations of Congress’ power under the Constitution to protect civil rights.”

 

Professor Theodore M. Shaw said the Court appeared to drop some not-so-subtle hints to Congress that it should make changes to the Voting Rights Act or the Court might do so instead.

 

“If one were looking to strike down Section 5 it would have been teed up very nicely,” said Shaw, who was deeply involved in the extension of the Voting Rights Act while director-counsel and president of the NAACP Legal Defense Fund. “But I think those on the Court who evinced hostility on Section 5 didn’t want to go there for other reasons.”

 

Roberts noted in his decision that while the Court treads carefully on constitutional questions, 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.” 

  

Shaw said Roberts “exhibits some hostility or, at least some strong, strong concerns” about Section 5, which are also reflected in the dissent by Justice Clarence Thomas, who would have gone a step further and deemed the provision unconstitutional.

 

Associate Professor Jamal Greene said there are other reasons lawmakers should pay heed. “I’d be surprised if the liberals on the court are presently inclined to strike down the statute, but they did sign on to an opinion that says there were constitutional problems,” he said.

 

But will Congress take the hint? Greene isn’t optimistic.

 

“Part of the reason Congress is able to get consensus on the Voting Rights Act is it’s preserving the status quo and that’s easier to do than making a lot of changes,” Greene said.

 

Greene noted that any attempts to alter the Act would likely spark turf battles lawmakers are eager to avoid. “Congress would prefer the Court to take the heat for striking down the Act,” he said.

 

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