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Analysis: Is Section 5’s future shaky?


Under the Voting Rights Act as it now stands, its Section 5 — the part that requires a number of states and many local governments to get approval in Washington to change their election laws — is due to last until 2032.  But the Supreme Court, in its ruling Monday avoiding the issue of Section 5’s constitutionality, has not guaranteed that it will last that long.

In the next few years, either a local government that tries but fails to get out from under Section 5’s controls, or a state government covered by the law but convinced it should not be any more, would have quite a good chance of renewing the constitutional controversy that the Court did not decide.  The main opinion, in fact, provides what could easily be read as a roadmap for such a future constitutional complaint.

Perhaps one of the main ways to read the Court’s ruling, then, is that it it a warning to Congress that it needs to reconsider Section 5, and shore it up, if it can, with a new formula for coverage, and provide some assurance that it will no longer single out some states to bear Section 5’s obligations in ways that the Court suggested were now unequal.

Those are the vulnerable aspects of Section 5, and they were freely acknowledged in the Court’s opinion.

Congress, of course, could take the gamble that, the next time Section 5’s constitutionality reached the Court, new Justices on the Court might bolster the provision’s support on that bench.  But that would be a high-stakes gamble.

Although the ruling was issued on an 8-1 vote, the nearly undeniable reality is that five members of the Court were very strongly tempted to strike down Section 5, and, perhaps realizing the enormity of doing so, found a way to put their temptation aside and resolve the case.  There is nothing in the opinion that suggests that the five members of the Court who were skeptics about Section 5 have changed their minds. (And none of those five is thinking of leaving the Court.)

It is pure speculation, but it is very likely that a decision to nullify Section 5 simply “would not write,” in the vernacular of judging,when it came down to that.  And it is also speculation, but it may well be that Chief Justice John G. Roberts, Jr., took — or was given — the assignment of crafting a spare 17-page opinion that did as little as necessary to get a result.  An opinion of that dimension can be put together quickly when the Court wants to move away from a sharp internal debate and decide just the single case before it.

The narrowness of the opinion, in fact, is shown in one passage the essence of which is easy to mistake.  While saying that all political subdivisions now covered by the law are eligible to seek “bailout” from its Washington pre-clearance duty (the interpretation that saved the law), the Court did not say that they would actually get free of it.  They are, the opinion said, “eligible to file a bailout suit.”

As Justice Clarence Thomas, the lone dissenter, wrote, the notion that the Court should not decide the constitutional issue here “is unavailable…because an interpretation…that merely makes more political subdivisions eligible for bailout does not render Sec. 5 constitutional and the Court notably does not suggest otherwise.”

Thomas added that “bailout eligibility is a distant prospect for most covered jurisdictions.” His opinion ticks off the criteria that a local government unit must satisfy in order to escape from the law’s coverage. (See pp. 3-5 of the Thomas opinion.)

Another reality surrounds Section 5’s future: that part of the law has been roundly condemned by many critics, especially among conservative advocacy groups, and they almost certainly will not be deterred by Monday’s decision from trying again to find a way to exploit the current Court’s skepticism about the provision — skepticism that was very much on display at the oral argument on April 29, and was echoed in parts of the Chief Justice’s opinion. 

The case that went before the Court was a vehicle chosen expressly to pose the constitutional question; the activist lawyers involved will have little or no difficulty working up another vehicle.

As the Chief Justice noted, “The plaintiff in this case is a small utility district raising a big question.”  No doubt there are other units of government, state or local, that feel sufficiently aggrieved by Section 5 that they would be ready to raise that “big question” all over again.  If the specific Austin, Texas, utility district that pursued the challenge this time is denied a bailout, it could re-raise the constitutional issue, but might be thwarted with the same three-judge District Court ruling that had upheld the law.  Another governmental unit, however, could draw another panel of the District Court, which would not be bound by the ruling overturned by the Justices Monday.  There also are other ways that the same constitutional challenge can be put forth in court, leaving Section 5’s future in some lingering doubt.