Regarding Supreme Court Decision on Voting Rights Provision
June 23, 2009
Sabrina Williams 202/728-9557 or 305/904-3960
Today the U.S. Supreme Court in Northwest Austin Municipal Utility District Number One v Holder issued an opinion that preserves Section 5 of the Voting Rights Act, but expands the ability of jurisdictions to opt out of Section 5 by ruling 8-to1 that municipalities across the South that have had a clean record for the last decade can seek an exemption from the law. While we are breathing a sigh of relief that the Court left intact the core protection of Section 5, the decision may represent only a temporary stay because the success of the Civil Rights Movement is being used in the courts as a reason to limit the need for continued legal protections, thus threatening continued progress. What civil rights groups are now contending with is that because progress being made means no more progress being needed and race is waning in significance.
The subtext of today’s ruling is as significant as the text. An entire section of the opinion is devoted to the constitutional frailty of Section 5. There is no counter-point or reassuring opinion indicating that Section 5 would survive a constitutional challenge. The Court said that passing judgment on an act of Congress is “the gravest and most delicate duty that this court is called upon to perform,” and that it need not undertake that momentous duty at this time. However, the Court also stated pointedly that “the act also differentiates between the states in ways that may no longer be justified.” Wrong.
Discriminatory voting practices are not a thing of the past, simply because there is a person of color sitting in the White House. That is why Congress decided in 2007 to reauthorize Section 5 for another 25 years. Chief Justice Roberts acknowledged that “Congress amassed a sizeable record [of contemporary discriminatory voting practices in the covered jurisdictions] in support of its decision to extend the preclearance requirements.”
The continued need for a preclearance system in jurisdictions with a history of discriminatory voting practices is illuminated by our country’s voting rights nightmare, the 2000 election, where African-American voters, especially in Florida, found themselves dropped from the voting rolls in unprecedented numbers, and showed up to polling places that had been moved without notice. More recently, enforcement of Section 5 of the Voting Rights Act prohibited Georgia from maintaining an electronic system for verifying voter eligibility that was chockfull of errors leading to the rejection of voters’ applications without additional information. African-American, Latino and Asian would-be voters were more likely than white voters to be placed on a list to bear additional hurdles to voting. In fact, African-Americans were sixty percent more likely to be on this list than white registrants. This unequal pattern of disenfranchisement led the U.S. Department of Justice to refuse the continued implementation of the system.
At the heart of why of Section 5 is so important does not lie in denials of preclearance, as only one percent of submission are denied, it as the district court that initial heard this case stated Section 5 “quietly but effectively deter discriminatory changes.”
Today’s opinion suggests the highest court in the land will defer consideration of the constitutionality of the provision in essence, kicking the can down the road so to speak, for the big dance between the legislative and judicial branches over how to confront the modern legacy of the nation’s ugly history of racial discrimination in voting.
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Filed under Voter Protection
