In the case of Northwest Austin Municipal District Number One (“NAMUDNO”) v. Holder, the Supreme Court issued a narrow decision today that avoided ruling on the constitutionality of Section 5 of the Voting Rights Act.
Section 5 requires any change in election administration in certain states and counties—mostly but not exclusively in the South—to be “precleared” by the Department of Justice in Washington. As I wrote earlier, this is a remnant of the Jim Crow era, and southern states’ massive resistance to attempts to enforce the 15th Amendment.
The ruling correctly allows a small utility district (and other political subdivisions) to seek relief—known as a “bailout”—from the 1965 Voting Rights Act’s onerous pre-clearance requirements. There is simply no reason for jurisdictions that have, at worst, gone decades without any voter intimidation or disenfranchisement—where the Act succeeded in stamping out or preventing racial discrimination—to continue to go before the Department of Justice for the most innocuous changes in state and municipal election procedures.
Here, for example, an electoral district that wasn’t even created until 1987 wants to move its polling locations from private garages to public schools, for ease of voting. Since Congress amended the Act in 1982, only 17 of 12,000 covered jurisdictions have been able to come out from under the thumb of federal oversight. Congress clearly never intended it to be so difficult to escape having to seek federal approval for such minor changes in election procedure.
This is one “bailout” that actually saves taxpayer money and makes common sense.
Unfortunately, the constitutionality of the Act’s Section 5—in the absence of the “exceptional conditions” the Court cited in 1966 as justifying “extraordinary legislation otherwise unfamiliar to our federal system”—remains in doubt. While it is a close call whether the Court need resolve that issue to dispose of the NAMUDNO case, Section 5’s validity as a matter of constitutional law and public policy is assuredly not a close call.
As Chief Justice Roberts notes in his majority opinion: “The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance.”
Indeed, blatantly discriminatory evasions of federal decrees are exceedingly rare. Minority candidates run for and hold office at unprecedented rates—particularly in the South. The racial gap in voter registration—the primary concern of the VRA—is higher nationwide than it is in the covered states; in some covered states, blacks register and vote at higher rates than whites.
As Justice Thomas says in his partial dissent: “Admitting that a prophylactic law as broad as § 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgement of victory.”
Editor's Note: Cato scholar Ilya Shapiro is blogging about the NAMUDNO v. Holder case from the Supreme Court, and will provide dispatches throughout the Court's session.
As I walk away from the Court, with the sounds of the NAACP rally fading in the distance, I'm no clearer on how this case will be resolved than when I went into the building early this morning.
This uncertainty mostly results from the rather technical issues surrounding the Voting Rights Act's "bailout" provision, as well as how narrowly the Court will want to construe the municipal utility's challenge (as-applied, facial, or some other novel formulation).
What is clear is that the "liberal" justices, especially Ginsburg and Breyer, were downright hostile to the idea of curtailing federal supervision of state voting practices, while the "conservative" justices (not including Thomas, who was characteristically silent) found disingenuous assertions that VRA violations were systemic, or any more pervasive in the covered (mostly southern) jurisdictions than in non-covered ones.
Justice Kennedy sided strongly with the latter group, but, again, that may not mean much for the final contours of the Court's decision.
However the case comes out, it is important to remember that even a complete striking of Section 5 does not leave voters who have been discriminated against without recourse in federal court; Section 2 has and will continue to be used to remedy VRA violations on a case-by-case basis (and without Section 5's onerous preclearance requirements).
I write this from the Bar Members' line waiting to be let into the Supreme Court courtroom for the final argument of the term.
Today the Court hears Northwest Austin Municipal Utility District No.1 ("NAMUDNO") v. Holder. This is a challenge to the controversial Section 5 of the Voting Rights Act, which requires, among other things, any change in election administration in certain states and counties to be "precleared" by the Department of Justice in Washington. This is, of course, a remnant of the Jim Crow era, and southern states' massive resistance to attempts to enforce the 15th Amendment.
In 1965, Congress included Section 5 -- which would otherwise be an unconstitutional infringement on peoples' right to run their own elections locally -- as a temporary remedy to an emergency situation. The section has been amended and extended several times (e.g., to add linguistic minorities, Pacific Islanders, etc.), most recently in 2006. But in this last renewal, Congress, despite introducing more than 15,000 pages into the record, failed to even allege the existence of the type of systemic voting discrimination as existed in the 1960s -- because, of course, it doesn't exist any more, and other parts of the VRA exist to cover specific discriminatory incidents.
Accordingly, a small utility district in Austin, Texas, contests Section 5's continuing validity (if it cannot escape the section's clutches via a confusing and little-used "bailout" provision). Specifically, NAMUDNO wants to change the location of its polling station to a public garage (from a less convenient location) -- a move that obviously lacks discriminatory intent, and showcases the minutiae that the DOJ now has to micromanage.
Cato legal scholars support NAMUDNO's challenge because, barring the widespread systemic unconstitutional actions of the Civil Rights Era, Section 5 violates our most basic principles of self-government and federalism, and is emblematic of governmental overreach.