Supreme Court Limits Voting Rights Act, But Declines to Strike Down Key Section of the Act

The Supreme Court expanded the ability of local governments to “bail out” of a draconian provision of the Voting Rights Act, which requires them to get “preclearance” from the Justice Department, or a special court in Washington, D.C., for even trivial decisions like whether to move voting booths across the street. A three-judge district court said even local governments with an undisputed history of non-discrimination could “bail out” of Section 5 of the Act only if they themselves register voters, which most local governments don’t. The Supreme Court just overturned that ruling, which had effectively rendered the bail-out provision meaningless.

(The Justice Department has recently used preclearance requirements to block Georgia’s attempt to keep illegal aliens from voting, saying that voter ID requirements exclude more Hispanics than whites (perhaps true, but only because Hispanics in Georgia are more likely to be non-citizens not entitled to vote than are the state’s white residents). The Supreme Court earlier rejected a constitutional challenge to voter ID in Crawford v. Marion County Election Board (2008)).

By an 8-to-1 vote, the Justices refused to strike down the pre-clearance requirements of the Act as unconstitutional, in the case decided today, Northwest Austin Municipal Utility District No. 1 v. Holder. Justice Clarence Thomas dissented, saying that Section 5 of the Act violated federalism provisions of the Constitution, since the extraordinary remedy of requiring pre-clearance could only be imposed if state and local governments were engaging in discrimination that was too pervasive to be checked on a case-by-case basis in lawsuits.

In 1966, the Supreme Court, in an 8-to-1 vote, upheld an earlier, less burdensome preclearance requirement, based on rampant, systematic discrimination against black voters, reasoning that its “strong medicine” was a temporary abrogation of constitutional federalism principles necessary for black people to be able to vote. Justice Black partially dissented in that case, South Carolina v. Katzenbach, arguing that Section 5’s “requirement that States come to Washington to have their laws judged is reminiscent of the deeply resented practices used by the English crown in dealing with the American colonies,” which Americans protested in the Declaration of Independence.

But Congress dramatically broadened the Voting Rights Act in 2006, making it more burdensome, even as the discrimination that once justified the Act has become rare.

In cases like Reno v. Bossier Parish School Board (2000), the Justice Department had attempted to use its pre-clearance veto power to force local governments to engage in unnecessary race-based districting. When the Supreme Court ruled in favor of the Bossier Parish School Board, with Justice Thomas noting that black people had fared quite well there without any racial gerrymandering (winning 3 of 12 seats on the Board), liberal newspapers and self-proclaimed civil-rights groups attacked the decision, and got Congress to overrule portions of that decision by dramatically expanding the pre-clearance requirements of the Voting Rights Act.

Ironically, even as the Justice Department uses Section 5 to force race-based restricting and thwart efforts to combat voter fraud and illegal alien voting, it has turned a blind eye to voter intimidation aimed at white voters, and done little to remedy violations of the voting rights of American soldiers.

I haven’t linked to press coverage of today’s ruling, since most of it is tendentious and ideologically biased. John Rosenberg, an expert on discrimination (and former expert witness in a landmark discrimination case), shows just how biased press coverage was of the Supreme Court’s recent decision in an age-discrimination case was (the case was Gross v. FBL Financial Services (2008)).

Earlier, I discussed how Obama misstated the facts of a landmark Supreme Court ruling, and distorted what the court’s ruling in Ledbetter v. Goodyear meant for people bringing pay discrimination lawsuits, and how the press (with a few exceptions) let him get away with it.