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Analysis: Voting Rights Act survives, but Supreme Court hints that revisions may be due

This article first appeared in the St. Louis Beacon, June 22, 2009 - The U.S. Supreme Court on Monday stopped short of overturning a key part of the Voting Rights Act, but it warned Congress that "things have changed in the South" and may no longer justify the popular law's toughest enforcement tools.

The court's 8-1 decision was a surprise because it had appeared at oral argument that the court was on the verge of striking down Section 5 of the law, which requires voting changes in the South to be "precleared" by the Justice Department. Instead, the court ruled that every political subdivision should be able to take advantage of a "bailout" procedure to escape the preclearance process.

Only Justice Clarence Thomas, the lone black justice on the court, dissented. "How ironic," commented Leland Ware, a law professor at the University of Delaware. "I had feared that Thomas' position might be adopted by a majority," he added.

Chief Justice John G. Roberts wrote the opinion for the court. It was in line with his philosophy of seeking greater unanimity on divisive constitutional questions. The decision also demonstrated judicial restraint by avoiding a big constitutional question on which the court may have a different view from Congress. The court may also have been leery of striking down one of the most effective and popular pieces of civil rights legislation.

Roberts' opinion was short -- 16 pages -- but it dealt with fundamental questions about the role of the court. On the one hand, the chief justice said the court is properly hesitant to overturn the acts of its co-equal branch, Congress. On the other hand, he cited the Federalist papers (No. 78) to say, "We will not shrink from our duty 'as the bulwark of a limited constitution against legislative encroachments.'"

The case before the court involved a small utility district in Austin, Tex., which was formed in 1987 and had no history of racial discrimination. But because it was in Texas and because Texas is one of the states whose discriminatory history subjects it to clearance requirements, the utility had to submit its election plans to Washington.

The utility district had sought to take advantage of a "bailout" provision for those jurisdictions without a recent history of discrimination. A lower court had ruled it did not qualify as a "political subdivision," but the Supreme Court said that every political subdivision should be able to take advantage of the bailout. That resolved the Texas utility's issue with the law, so the chief justice saw no need to go on to the "difficult constitutional question" of whether conditions still justify the law.

In the future, an election district that is refused a bailout would be able to bring a constitutional challenge to the law knowing from Roberts' opinion that the court has grave doubt about its constitutionality. For that reason, Congress may heed the court's warning to rework the law to address the court's concerns. In particular, it may need to address Congress' use of 1972 voter turnout statistics to determine which jurisdictions are covered.

The Voting Rights Act was passed in 1965 under Congress' power to enforce the 15th Amendment, enacted after the Civil War to guarantee the right to vote. The purpose of the clearance provision was to make sure that Southern politicians did not make changes in voting procedures to retain white control and dilute the power of black voters. The Supreme Court has previously upheld the constitutionality of the law, remarking that "exceptional conditions justify legislative measures not otherwise appropriate."

In 2006, big majorities in Congress extended the law for 25 years. The baseline for coverage continued to be voter turnout figures from 1972, clearly an issue that troubles the court.

Roberts acknowledged the "historical accomplishments" of the law, but he made clear that the "preclearance" provision "raised serious constitutional questions" because it "authorizes federal intrusion into sensitive areas of state and local policymaking" and "imposes substantial federalism costs."

The law also runs counter to the principle of "co-equal sovereignty," which places all states on a equal footing, the chief justice wrote.

"Things have changed in the South," Roberts added. "Voter turnout and registration rates now approach parity (with whites). Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels."

The chief justice acknowledged that "these improvements are no doubt due in significant part to the Voting Rights Act itself and stand as a monument to its success." But he added, "Past success alone, however, is not adequate justification to retain the preclearance requirements....the Act imposes current burdens and must be justified by current needs."

"The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that (are) now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the states originally covered by Section 5 than it is nationwide."

But after raising all of these questions about the constitutionality of Section 5, the chief justice decided that the court could provide the Austin utility district with a remedy by allowing it to seek to bailout of the clearance procedures. "Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today," he wrote.

That clearly disappointed Thomas whose dissent was longer than the court's opinion. Thomas detailed the brutal ways that whites denied blacks the vote in the post-Civil War South. But he said that those conditions, which initially justified the Voting Rights Act, no longer exist.

"Now -- more than 40 years later -- the violence, intimidation, and subterfuge that led Congress to pass Section 5 and this Court to uphold it no longer remains," he wrote. "An acknowledgment of Section 5's unconstitutionality represents a fulfillment of the 15th Amendment's promise of full enfranchisement and honors the success achieved" by the Voting Right's Act.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.