BREAKING: SCOTUS upholds Sec. 5 of Voting Rights Act, but provides a roadmap to future legal challenges

Posted by AzBlueMeanie:

From the SCOTUSblog Section 5 survives:

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.

Chief Justice John G. Roberts, Jr., writing for an eight-member majority in Northwest Austin Municipal Utility District v. Holder (08-322), said that Section 5 has achieved “historic accomplishments,” but “now raises serious constitutional concerns.”

And, he said, while the Court would not shrink from its duty to apply the Constitution to block “legislative encroachments,” the Court also was obliged to decide a case by interpreting the scope of legislation if that route is available as an alternative to striking down the law altogether. That is the option it chose.

Justice Clarence Thomas, who dissented alone, said that 45 years after Congress initially passed Section 5 in 1965, “the violence, intimidation and subterfuge” that led to its enactment “no longer remains.” He said giving local governments a chance to bail out was insufficient, so he would nullify Section 5.

“Because the Court’s statutory decision does not provide [NAMUDNO] with full relief, I conclude that it is inappropriate to apply the constitutional avoidance doctrine,” Thomas wrote. He agreed only with the outcome of the case — the reversal of a three-judge U.S. District Court ruling that had upheld the law and had found that NAMUDNO was not eligible for an exemption from the law.

The decision was probably the most eagerly awaited ruling of the current Term.  It came as the Justices continued to press toward their summer recess, issuing the Section 5 decision and two others Monday.

And the SCOTUSblog 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.

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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.)

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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. 

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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…