KROMM REPORT: Will the Supreme Court kill the Voting Rights Act?

Talk about saving the biggest for last: Today, the last day of the Supreme Court term, they will hear one of the most important cases in years: the fate of the Voting Rights Act, the landmark piece of civil rights legislation passed by Congress in 1965 and re-approved in 2006.

The case is Northwest Austin Municipal Utility District #1 v. Holder -- shortened to NAMUDNO -- and represents the most serious challenge to the act to date, and has become a lightning rod for debate over the role of race and racism in U.S. politics today.

The case started in 2006, when a largely white and wealthy utility district in Travis County, Texas argued that it should be excepted from Section 5 of the Voting Rights Act, which requires that a handful of states and counties -- mostly in the South -- must "preclear" any changes to voting procedures with the Department of Justice before they're implemented.

Section 5 has been battled by conservatives, especially in the South, ever since. The 1966 case South Carolina v. Katzenbach went all the way to the Supreme Court, which affirmed that, while certainly a heavy-handed approach, Congressional action was needed to enforce the Constitution's 15th Amendment protections against racially-biased voting laws.

The original NAMUDNO complaint [pdf] made two distinct legal arguments: First, that the Texas district should have the right to "bail out" from the Section 5's preclearance provision; and second, failing that, the entirety of Section 5 should be struck down as unconstitutional.

It was an odd place for Section 5's biggest threat to originate. For example, the utility districts' central claim is that complying with Section 5 is too "burdensome" -- even though it has only cost the district about $233 a year. In contrast, last month the attorney generals of six states which face far greater "burdens" in complying with the Act -- Arizona, California, Louisiana, Mississippi, New York and North Carolina -- filed an amicus brief [pdf] arguing that "the burdens imposed by Section 5 on covered jurisdictions are not onerous."

But whatever its strange origins, NAMUDNO could be fatal to Section 5. The case is structured as an all-or-nothing -- as election law guru Richard Hasen points out in Slate:
What's especially worrying about NAMUDNO is that the case doesnot provide the court with an easy incremental way out: If a majorityof the justices want to side with the challengers to the Voting RightsAct, there's not much they can do short of holding the act as broadlyunconstitutional.
And given the inclinations of the current Supreme Court, a complete take-down of Section 5 is a distinct possibility. As a Reagan lawyer in 1982, now-Chief Justice John Roberts spearheaded an effort to prevent expansion of the Voting Rights Act.

More broadly, the current Supreme Court's "new federalism" approach requires that any attempts by Congress to assert power over states -- as with Section 5 -- must prove specific instances in which states are violating the Constitution (one landmark case was University of Alabama v. Garrett).

But such a test puts Congress and the Department of Justice in a Catch-22: If they are unable to prove instances of racial discrimination in voting, is that because racially-biased voting doesn't exist -- or is it because the Voting Rights Act and Section 5 are doing their job? As Hasen points out:
The problem with Section 5 of the Voting Rights Act is that it has beenso successful that there's little ongoing evidence that states areengaging in unconstitutional discrimination.
Yet even the Supreme Court's moderates Stevens and Souter said in an opinion last year that "it may well be true that today [Section 5] is maintaining strictfederal controls that are not as neces≠sary or appropriate as they oncewere."

In the media and public debate, the touchstone for whether Section 5 is "necessary or appropriate" is the election of President Barack Obama. But the 2008 elections produced just as much proof that election laws still have strong racial implications.

Just last year, Georgia Secretary of State Karen Handel made the controversial decision to challenging the citizenship of 4,770 voters just days before the elections. It was only due to Section 5's preclearance provision that a federal court panel forced Handel to partially retreat from the policy, which critics said unfairly targeted Latino voters and those with "foreign-sounding" names.

The issue of race will become even bigger in 2011, when states undergo another round of redistricting in the wake of the 2010 Census. With Southern states with large African-American and Latino populations projected to gain at least eight new Congressional districts, questions of how and whether states will protect representation of racial minorities will be front and center.

In 2006, there was a path not taken: When Congress took up the Act's renewal, they could have reviewed the states and districts covered, which even some of the Act's staunchest defenders say should likely be reconsidered given that they're based on formulas over four decades old.

But neither side wanted to do that in 2006: Proponents of Section 5 (largely Democrats) didn't want to open the door to tinkering, and detractors (mostly Republicans) didn't see a political upside from questioning black and Latino voting rights in an election year.

Will the Supreme Court find a way to kick the issue back to Congress, opening up a long and protracted battle in Washington over which places are covered and how?

Or will the Roberts Supreme Court finally take their "new federalist" beliefs to their full conclusion and finally kill Section 5 of the Voting Rights Act?

Even if that fate is avoided today, it may only be a temporary reprieve. The Roberts court is fundamentally at odds with the outlook of the Voting Rights Act, and if NAMUDNO doesn't put the final nail in the coffin, it seems likely another case will. And as Hasen says:
If Section 5 goes down, the sordid business of racial discrimination invoting could emerge again as a potent force, and Congress will havefewer weapons to fight it.