SECTION 5 STILL HANGING BY THAT THREAD

If you're the sort of person who reads transcripts of Supreme Court oral arguments, and if you have even a passing interest in civil rights law, then you probably figured that Section 5 of the Voting Rights Act was history.

The case was Northwest Austin Municipal Utility District No. 1 v. Holder and all you could want to know about is available at the scotuswiki here. Rather than making you slog through the briefs and argument and whatnot, here's the short version: The Voting Rights Act, a 1965 civil rights law designed to overturn decades of efforts to prevent African Americans from voting, is in part permanent and in part temporary. Among the temporary provisions is Section 5 which requires that certain states and localities which have a history of discriminatory practice in voting, cannot change anything about their voting procedures without getting preclearance from the Justice Department. There's a bailout provision whereby a covered entity can demonstrate it should no longer be subject to the VRA. The District tried to bail out but was told it was not an entity entitled even to seek bailout. So it went to the Supreme Court.

Back to the oral argument. The smart money, when it was over, was that there were 5 votes (which is enough, of course) to declare Section 5 unconstitutional as an infringement on state sovereignty. Everyone condemned the discriminatory past and praised the VRA, but the tea leaves seemed to permit little doubt that Scalia, Alito, and Roberts (along with the ever silent Thomas) would say that Section 5 had done its duty and was no longer necessary. Besides, it was irrational because, for instance, Massachusetts which has no preclearance requirement is at least as discriminatory as, say, Texas.

The key, naturally, would be Justice Kennedy, and the signs weren't good for Section 5:

But yet -- yet the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than the other.

One of the things we no about the Supreme Court (really, every court) is that it sometimes upends predictions. Today, the Court issued its decision. That 5-4 vote to hold Section 5 unconstitutional came out 8-1 to hold it . . .? Well, it's not terribly clear just how the 8 decided to hold it.

What the opinion by Roberts for the purportedly sane justices (Scalia has, on at least a couple of occasions, distinguished himself from Clarence Thomas by explaining, "I am not a nut") actually says is that the Utility District can seek a bailout from Section 5 preclearance. The lower court had simply read the provision too narrowly.

Whew! Section 5 survives. Preclearance survives. Voting rights survive.

But hold on. Roberts explains that the Court didn't reach the constitutional problems involved because it didn't need to. (Thomas disagreed and would have invalidated Section 5.) But Roberts made clear that Section 5 was surviving by the merest quirk of how the Utility District had argued its case.

The law may have been justified at its inception, but times change:

Some of the conditions that we relied upon in upholding this statutory scheme in Katzenbach and City of Rome have unquestionably improved. Things have changed inthe South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. . . .
These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements. See Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success? 104 Colum. L. Rev. 1710 (2004). It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.

Besides Section 5 discriminates among the states.

The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.”. . . But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.

And, again, things have changed.

The evil that §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 is now more than 35 years old, and there is considerable evidence that it fails to account for current political condi-tions.

This is all deeply troubling. But - punt.

The thing is, these narrow holdings don't do much. There will be another case. Section 5 just got a break on its shelf life, but there's an expiration date looming unless one of the 5 miraculously switches sides or leaves the court.

Judicial minimalism defers resolving broader questions. It doesn't obviate the need.