Thinking about the Supreme Court and the Voting Rights Act

What does it mean that the Supreme Court declined to rule on the basic constitutionality of the Section 5 of the Voting Rights Act that requires certain jurisdictions to get preclearance of any change in their voting procedures? Some, like liberal election law specialist Rick Hasen, think that it means that the Supreme Court blinked and stepped back from a 5:4 decision to strike down such a momentous law.

Linda Greenhouse has a particularly dippy comment wondering why the Supreme Court would have taken the case at all. She believes that since whites in the covered areas voted for Obama at less than the rate that whites in other areas that this must prove discrimination.

Based on the exit polls cited in this brief, Obama received 48 percent of the white vote in noncovered jurisdictions and 26 percent in places where Section 5 applies. In fact, fewer whites in covered jurisdictions voted Democratic in 2008 than in 2004. Of course, Justice Thomas would say these statistics are meaningless because they don't reveal intentional discrimination sufficient to overcome the strictures that he believes the court has properly placed on Congress' authority to enact legislation to protect against violations of core constitutional rights. That's a battle for another day.

There could be other factors than racial that accounted for that division between 2004 and 2008. Citizens in those states might have found aspects of Obama's candidacy more troubling than John Kerry - perhaps his association with Jeremiah Wright or the adulatory aspects of Obama's support. They might have been more worried about the prospects of an undivided control of the government by Democrats, something that wasn't a concern in 2004. Or since McCain had a special appeal for veterans and there are more veterans in those areas of the country, they might have voted based on that while some veterans might have voted for Kerry in 2004.

As far as the differences between those regions and others in the 2008 election, Greenhouse is assuming that race was the determinative factor. However, a more salient difference might have been religion. Those regions have more evangelicals and more people who attend church weekly or more. And strength of religiosity was one of the strongest predictors of support for McCain. Evangelicals went for McCain 74% to 24%. Those who went to church more than once a week went for McCain over Obama 67 to 32. Those who said that the most important quality in making their choice was that the candidate shared their values went for McCain 65 to 32. Might those factors have played more of a role than racism in making their choice?

And even if they were voting out of pure racism, it is still a jump to saying that they would then create barriers to blacks voting. Greenhouse is still assuming that they would implement their supposedly racist views in illegal barriers. Even if the Supreme Court overturned the preclearance aspects of the Voting Rights Act, it would still be illegal to put any blocks based on race in the way of people voting.

I think that Tom Goldstein's analysis at Scotusblog is closer to the mark.

The Court’s opinion will go down in history I think as among the Chief Justice’s most significant, and a model for his philosophy of judicial minimalism, which plays out in this case in two separate respects. First, the Court gives Congress in the first instance the opportunity to exercise its constitutional responsibility to apply the Constitution. Second, the opinion brings together a wide majority of eight Justices for a result with which they can all agree.

Congress’s response will dictate whether the Court next acts more decisively and divisively. The model of judicial decision making suggests that a majority of the Supreme Court is willing to give Congress some measure of breathing room in exercising its authority to enforce the Fifteenth Amendment. The opinion does not resolve the debate over the breadth of that power. But today’s opinion is in effect one paragraph in a larger conversation between the legislative and judicial branches over how to confront the modern legacy of the nation’s ugly history of racial discrimination in voting. A majority of the Court could have imposed its own will in dictating the answer to that question, but more modestly - to use the Chief Justice’s phrase - left it to Congress to attempt to address the Justices’ concerns.

A failure by Congress to respond to the Court’s opinion will be fatal to Section 5. If a jurisdiction that is unable to “bail out” from the statute’s coverage yet does not have a reasonably recent history brings a challenge to the statute as currently enacted, it will succeed. The model here is arguably Bush v. Palm Beach County Canvassing Board, which unanimously set forth the Court’s concerns with the Florida recount. When the Florida Supreme Court failed to respond appropriately - indeed, at all - the U.S. Supreme Court halted the recount outright by a narrow, ideologically divided majority in Bush v. Gore.

That seems like the preferable solution from the point of view of judges like the less liberal ones on the Court to defer to the legislature to change a bad law. However, it does not seem likely at all that this Congress would attempt such a change. Democrats are against it on policy and ideological grounds. Republicans would be hesitant on political grounds. They would fear being demonized as racists. That is why Republicans voted for the renewal in 2006. It passed unanimously in the Senate and with just minor GOP opposition in the House. One more example similar to campaign finance reform that conservative politicians shouldn't vote for or sign a bill they might believe is unconstitutional in hopes that the Supreme Court will do their job for them.

So chances are that we will be revisiting this issue again when, as Goldstein predicts, some jurisdiction to bring a further challenge to Section 5. If there is some region that applies for bailout and is denied, then it will be up to the Court to determine if the provisions of Section 5 are still constitutionally necessary.