May 13, 2009

Will the VRA survive the Supremes?

Posted in Elections, Uncategorized, Voting Rights, Voting Rights Act tagged , , at 9:55 pm by bluebanshee

There are members of the current U.S. Supreme who have an almost visceral dislike of the Voting Rights Act of 1965. This antipathy became clear during recent oral arguments  about a Texas case (Northwest Austin Municipal Utility District Number One v. Holder (“NAMUDNO“).  Chief Justice Roberts and Justice Samuel Alito were the most vocal in questioning whether the landmark legislation is still needed.

Meanwhile pivotal Justice Kennedy appeared troubled by the fact that only certain jurisdictions were targeted by Section 5 of the VRA.;_ylt=AmvKqBV5We0Hq8dPinSy4ayyFz4D

Kennedy said defenders of the law have a “very substantial burden” in showing the continuing need for the “great disparity in treatment” between states that are covered and those that are not covered by the law.

However there is some indication that Justice Kennedy would be likely to uphold the VRA.  Rodger Citron offers the following analysis on Findlaw.

As is often the case, Justice Kennedy’s vote is likely to be decisive. And there are at least two reasons to believe that he is more likely to vote to sustain Section 5 rather than to invalidate it as unconstitutional. First, in a decision earlier this year involving a claim brought under another section of the Voting Rights Act, Bartlett v. Strickland, Justice Kennedy wrote that:

Some commentators suggest that racially polarized voting is waning – as evidenced by, for example, the election of minority candidates where a majority of voters are white. Still racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions; and section 2 [of the Act] must be interpreted to ensure that continued progress.

That is hardly the statement of a justice prepared to invalidate a significant – albeit different – provision of the Act.

Second, invalidating Section 5 would be politically controversial, and could be interpreted as a repudiation of the historical struggle for civil rights that culminated in (among other things) the Voting Rights Act of 1965. Among the Justices, Kennedy seems particularly attuned to the political consequences of the Court’s decisions, and he would seem inclined to avoid the controversy attendant to a decision that would strike down Section 5 as unconstitutional.

The VRA was  extended in 2006 for 25 years by an overwhelming bipartisan vote of Congress.  They compiled extensive evidence that the law was still needed.  In order to overturn Section 5 the Supremes would have to ignore the intent of Congress and the mountain of statistics and testimony created through the process leading to the renewal.

Obama administration lawyer Neal Katyal argued the law should be upheld.

“After 16,000 pages of testimony, 21 different hearings over 10 months, Congress looked at the evidence and determined their work was not done,” he said.

Will the Supremes strike down Section 5 of the VRA?

Liberal justices Souter and Ginsberg expressed support for the law but it is the swing vote of  Kennedy that may determine the fate of the VRA. Which is why court-watchers are trying to determine which way the winds are blowing by parsing the questioning of the justices during oral arguments.

During recent oral arguments before the U.S. Supreme Court,  the  publicly expressed distaste for the Voting Rights Act by Roberts and Alito  has many observers to worrying that the landmark legislation is in danger of being struck down.

However the  VRA has been previously been upheld 5 times by the Supreme Court and the Supreme  Court usually could be expected to follow precedent under the doctrine of stare decisis.   Another option often seen in this current  closely divided court would be to craft a narrowly drawn legalistic exception that would stop short of striking down Secti0n 5 of the VRA.

In a unanimous ruling last May, the lower court said Congress had documented extensive evidence of “contemporary racial discrimination” and had grounds to renew the law for 25 years — therefore the Supreme Court would have to overrule this finding of fact and also overrule the clear Congressional intent if they decided to strike down Section 5 of the VRA.    If it weren’t for the ideological bias of the court’s right wing bloc this would not be a likely outcome.   Given the current composition of the Court, civil rights advocates are understandably nervous.

One argument that is being made is that the election of Barack Obama proves that the VRA is no longer needed.  This is a dubious argument because the VRA has always been targeted at removing barriers to participation by eligible voters and providing them with a level playing field not at which candidates won.  If one looks at the voting patterns in the Old Confederacy, the area most subject to this particular section 5 of the VRA, it becomes clear that there is still a racial divide in voting.

Civil rights advocates, backing the Justice Department’s defense of the renewed Voting Rights Act, stress that parts of the nation still vote along racial lines and argue the law that opened the door to widespread black voting four decades ago is needed. The act ended literacy tests and other state measures that had kept blacks from the polls.

“Obama’s election reflects an enormous advancement in race relations in the United States,” says Laughlin McDonald of the American Civil Liberties Union. “But voting, particularly in the South, remains significantly polarized.”

Exit polls from the Nov. 4 presidential election showed whites in many Southern states heavily favored John McCain to Obama. In Texas, 73% of whites favored McCain, in Georgia, 76%, and in Alabama, 88%. Nationally, the percentage of whites for McCain was 55%, exit poll data show.

Furthermore, Obama’s percentages among whites lagged behind Kerry’s 2004 numbers in the South, suggesting that the candidate’s race was a factor even during a national Democratic landslide.

Another interesting twist is that the states most impacted by VRA oversight are not supporting the current challenge to Section 5.

Conservative legal activists who mean to liberate the mostly Southern states that bear the biggest burden under the Voting Rights Act lack support from a key group:

The mostly Southern states that bear the biggest burden under the Voting Rights Act…. It is considered the most severe federal intrusion on state autonomy, but none of the states subject to it has joined the fight.

The closest has been Georgia Gov. Sonny Perdue (R), whose personal brief supporting the challenge was filed by a private lawyer because the state’s attorney general refused to do it. Alabama filed a brief frankly acknowledging its racist past and touting its racial progress but stopped short of advising the court what to do.

However, two of the nine states that must abide by the act’s directive — requiring that even the smallest change in their voting laws or procedures must be preapproved by federal authorities — lined up with the government in defending the law. They were joined by four other states where some jurisdictions are covered by that requirement.

The states “recognize that Section 5 of the Voting Rights Act has allowed our nation to make substantial progress toward eliminating voting discrimination,” said the brief filed by Mississippi, Louisiana, North Carolina, California, Arizona and New York. “More, however, remains to be done.”

One would think that this apparent acquiescence by the jurisdictions most affected by the law would be considered by the Supremes in making their decision.

The decision in the case Northwest Austin Municipal Utility District Number One v. Holder (“NAMUDNO“), is expected in June.

Let’s hope the Supremes do the right thing and uphold the VRA.

Note: Some resources about NAMUDNO:;_ylt=AmvKqBV5We0Hq8dPinSy4ayyFz4D

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