In a stunning 8-1 decision, the Supreme Court has upheld Section 5 of the Voting Rights Act, which holds that certain jurisdictions with a history of discriminating against minority voters must submit changes to their election laws to the Justice Department for "preclearance." The lopsided decision is something of an upset -- like finding out your local little league team beat the Boston Red Sox -- because in oral arguments, the court's conservatives seemed entirely unconvinced of the ongoing need for Section 5. Divining internal politics that led to the courts' decision are better left to reporters with much better connections to the court, such as Jeffrey Toobin. But for now, it's worth noting that Toobin's devastating evaluation of Chief Justice John Roberts, that he has "sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff,” wasn't exactly true in this instance.
The significant change to Section 5 is now that smaller political subdivisions will be eligible for preclearance. Only 17 jurisdictions have bailed out of preclearance since 1982, even though the requirements aren't that onerous: they require at least ten years without a Section 5 violation, and the process costs about $5,000. As Roberts might say, all you have to do to be eligible for bailout is to "stop discriminating on the basis of race."
Still, the majority opinion reads at times more like an argument against Section 5 than one for it. The Court is deferring to Congress, as Roberts writes, "Congress amassed a sizable record in support of its decision to extend the preclearance re-quirements," and even acknowledged the deterrent effect of Section 5, despite deriding it as "whistle to keep away the elephants." This was then, a rare act of judicial restrain on the part of the court's conservatives--"Whether conditions continue to justify such legislation is a difficult constitutional ques-tion we do not answer today." Eight of the nine justices agreed, except for the most activist judge on the court: Clarence Thomas.
Thomas delivered a partial (post-racial?) dissent arguing that Section 5 was unconstitutional because "[c]overed jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence," and therefore we no longer require the federal intrusion of Section 5. This is a strawman -- voter suppression need not be conducted through violence to be effective, just ask Hans von Spakovsky, whose record of disenfranchising minority voters disappears on the horizon. Despite the relatively good performance of our election system last year--due in large part to the tireless efforts of voting rights lawyers and Section 5 -- Pew's evaluation showed that the effect of restrictive voting rights still falls disproportionately on minorities. This is what the "purpose or effect" clause in the Voting Rights Act refers to -- not just intimidation and violence, but laws targeting minority voters under the pretense of deniability.
The 8-1 decision was unexpected, and welcome. A complete reversal of Section 5 would have likely resulted in an avalanche of partisan efforts to skew voting laws against minority voters. Now jurisdictions will have to get out the (relatively) hard way, through good behavior, and by the time jurisdictions have bailed out, the partisan targeting of minority voters for disenfranchisement will hopefully be a thing of the past.
-- A. Serwer