High Court Rules Narrowly In Voting Rights Case
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The U.S. Supreme Court has side-stepped the most high profile constitutional issue of the current term. Confounding predictions, that court has left the Voting Rights Act intact for now, but it did broaden the ability of local communities to bail out from under federal supervision.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: The court's vote was 8-1, with the only African-American justice, Clarence Thomas, the lone dissenter. He would have struck down the key provision at issue in the case. That provision, known as Section 5 of the Voting Rights Act, requires that all or some parts of 16 states get clearance in advance from the Justice Department before changing voting procedures. The jurisdictions covered under the act are mainly, but hardly all, in the South. And all areas that historically discriminated against minority voters. Initially enacted in 1965, the act was repeatedly upheld by the courts and repeatedly reauthorized by Congress, most recently in 2006.
Indeed, the act was so popular that the constitutional challenge to the law was, in essence, manufactured. Instead of a client seeking a lawyer, this case started the other way around, with a lawyer recruiting a small Texas utility district to bring suit. Only when the case reached the high court did the voting rights law looked like it was in trouble. In April, when the case was argued, it looked very much as if there were five votes to strike down the preclearance provision. But yesterday, in an opinion written by Chief Justice John Roberts, eight justices stayed their hand, leaving the statute intact for now. Instead, the court ruled only on a technical statutory question, declaring that henceforth, any government subdivision can take advantage of the law's escape clause if it has a 10-year clean bill of health in voting.
Stanford Law Professor Pam Karlan, a leading voting rights expert, says, in essence, that the court blinked.
Professor PAM KARLAN (Law, Stanford University): What the court doesn't want is to have to strike down the Voting Rights Act, because the act is a kind of super-statute. It is an iconic moment of the civil rights movement.
TOTENBERG: By reinterpreting the Voting Rights law to allow many more jurisdictions to qualify for bail out, says Karlan, the court is giving the law far more flexibility than it had in the past, and that, she suggests, may be enough.
Professor TOM GOLDSTEIN (Supreme Court Practice, Stanford and Harvard Law School): I think that the marker laid down today by the Supreme Court is much more serious than that.
TOTENBERG: Supreme Court advocate Tom Goldstein teaches Supreme Court practice at both Stanford and Harvard Law School.
Prof. GOLDSTEIN: The clock is ticking, that the Supreme Court is going to give the Congress a chance to narrow the statute. But if it doesn't take up that invitation, then at least five justices - it seems clear - are ready to strike the statute down if Congress kind of puts them in that corner.
TOTENBERG: NYU Law Professor Richard Pildes, another leading voting rights expert, agrees.
Professor RICHARD PILDES (Law, New York University): Congress sort of threw a gauntlet down to the court when it reauthorized the statute without updating it in any way in 2006. And, in many ways, the court, in its own more gentle fashion, has kind of thrown the gauntlet back down to Congress and signaled pretty powerfully that unless Congress updates this statute, the next time around, the court is very likely to find it unconstitutional.
TOTENBERG: Prior to yesterday's ruling, there had been intense work behind the scenes at the Justice Department, in Congress and among civil rights groups seeking some new approach to voting rights in the event the law was struck down. But sources say those efforts largely failed to reach a consensus. Yesterday's Supreme Court ruling will undoubtedly add inertia to the equation. After all, there are real problems in designing a new law. In addition, Republicans like the Voting Rights law because they think it gives them some advantages. Democrats are afraid to abandon it because it's been so successful and has such an iconic status.
And civil rights advocates are fearful that without the laws deterrent provisions, discrimination could once again become all too common.
Nina Totenberg, NPR News, Washington.
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