A Question Of Enforcement

In a sweeping and unanimous decision, the Supreme Court has put an end to the practice of preclearance in enforcing the Voter's Rights Act of 1965. Preclearance affected 16 mostly Southern states that had a history of denying blacks the right to vote.

At issue is whether in 2006, Congress properly extended the law -- whose Section 5 mandates that the covered states get advance approval of changes in how their elections are conducted -- or whether the country has made enough progress on racial equality to make continued federal oversight essentially unnecessary.

The case involves a small homeowners association board outside Austin, Texas. In 2003, residents of the Canyon Creek planned community sought to move their polling place to an elementary school that is the neighborhood's polling place for all other elections. Such a move required federal approval under Section 5.

The court's ruling makes the Texas district eligible to "bail out," or become exempt from federal oversight. But it does so without resolving the larger constitutional questions of when race-based solutions can be used to remedy past and present discrimination. Such a narrow ruling upholds the law, for now.

But Roberts noted in his ruling that the preclearance provision raises "serious constitutional questions." And he added that it "represents an intrusion into areas of state and local responsibility that is unfamiliar to our federal system."

Backed by a group of conservative activists, Canyon Creek launched a direct challenge to the law's "preclearance" provision, arguing that it should not be enforced in areas where it can be claimed that racial discrimination no longer exists.

Civil rights groups say Section 5 has proved to be an important tool to protect minority voters from local governments that could set unfair or unconstitutional barriers to the polls. If it is ruled unconstitutional, they warned the justices, the very power and effect of the entire Voting Rights Act would crumble.

The Bush administration had led the legal fight defending the law, but the case was argued in April by a Justice Department attorney named by President Obama.

During those oral arguments, several dozen members of the NAACP rallied outside the court, and members of Congress attended the 70-minute oral arguments, including the Senate Judiciary Committee chairman, Patrick Leahy, and longtime civil rights activist Rep. John Lewis.

Since 1982, only 17 jurisdictions have been able to "bail out," or become exempt from federal oversight, out of about 12,000 covered political jurisdictions.

"It is unlikely that Congress intended the provision to have such limited effect," Roberts said, in the face of statistics showing voter turnout and registration rates reaching parity between the races in most areas of the country.

Justice Clarence Thomas, the court's only African-American, supported Monday's decision but said he would have gone farther and declared Section 5 to be unconstitutional.

"The violence, intimidation, and subterfuge that led Congress to pass Section 5 and this court to uphold it it [in part] no longer remains."

A unanimous Supreme Court decision is one of those things that's pretty hard to argue against. Thousands of jurisdictions no longer are assumed guilty of racism before proven innocent. Don't get me wrong, racism still exists...but now at a voting level it has to be proven. I don't agree with Justice Thomas that Section 5 of the Voting Rights Act should be rendered unconstitutional, however.

Lyle Denniston at SCOTUSBlog has more:

With only one Justice voting to strike down Congress’s 25-year extension of the Voting Rights Act’s controversial Section 5, the Supreme Court on Monday interpreted the law in a way that saves it. The Court said that all local units of government must be given the option to bail out of the requirement that they get Washington approval for any changes in their election laws or methods.

So for now, VRA remains intact.