In a decision that virtually no court watchers saw coming, the U.S. Supreme Court today dispensed with the constitutional challenge to the pre-clearance requirement of the Voting Rights Act by, in essence, creating a technicality. Back when this case was argued before SCOTUS, most readers of tea leaves believed that the Justices’ questions to counsel indicated they were inclined towards a 5-4 split in favor of invalidating pre-clearance, or possibly a narrow decision the other way with Kennedy providing the swing vote. Almost no one expected a slam dunk 8-1 majority opinion like the one issued today.
In the case, Northwest Austin Municipal Utility District Number One v. Holder, a small elected utility district board asked the Court to either declare the preclearance section of the VRA unconstitutional, or in the alternative to allow the district board to utilize a “bail out” provision in the VRA that provides a means for discrimination-free municipalities to be exempted from preclearance. The problem was, SCOTUS already decided that only states and municipalities that actually register voters can utilize the bail out procedure. In his majority opinion, Justice Roberts found a way to “reinterpret” that bail out provision so as to avoid the constitutional question entirely and allow the utility district to apply for bail out. In so doing, the Court never reached the question of the constitutionality of preclearance, though the decision details some of the concerns certain members of the Court have with preclearance that is premised upon the state of voting in covered jurisdictions as of 37 years ago. Many are interpreting this decision as a warning shot to Congress to clean up VRA or risk having it overturned entirely.
While I was initially surprised by the decision, once I read it I was no longer surprised that the Court took this approach. It is accepted doctrine that the Court prefers to avoid deciding explosive constitutional issues if they can find a way around them. Dismissals for mootness or insufficiency of jurisdiction, for example, have derailed many a would-be landmark case. By expanding the application of the bail out provision to all muncipalities that hold elections, SCOTUS avoided very troubling third rail issues raised by this case. It was the ultimate workaround, and by employing it Roberts bought the Court more time before they have to wade into this ugly briar patch.
A few years ago I read the excellent Bob Woodward book “The Brethren,” in which he wrote about Chief Justice Warren Burger’s struggle to weaken the impact of the most controversial Warren Court precedents, all while still respecting the rule of stare decisis. While Burger often preferred to decide high profile cases such as obscenity, abortion, privacy, criminal procedure and school desegregation in a far more conservative way than they actually turned out, he frequently utilized a shrewd tactic when he realized he lacked enough votes to get his way: he joined the majority, utilized the Chief Justice’s privilege of assigning the opinion to himself, and then crafted a much more narrowly (and sometimes trickily) written opinion than another Justice might have. Burger found ways in his opinions to “distinguish” unhelpful precedent and thereby weaken it, even though he would not have had the votes to overturn it entirely. Burger used these tactics to moderate many of the most significant decisions during his first few years on the Court, and laid the groundwork for many of the more conservative decisions from his own later years and from the Rehnquist Court.
Justice Roberts appears to be utilizing much the same tactic as Burger did decades ago. I am struck by how clearly he laid out the precedent standing in his way in this case, and yet deftly described the Court going in a different direction here without ever explicitly saying that any past precedents were overruled or modified. I suspect the pundits who are predicting that SCOTUS has the votes to find preclearance unconstitutional may very well be wrong. Roberts may have crafted this coalition opinion on a technicality precisely in order to avoid being in the minority of a 5-4 decision upholding preclearance. He and the other conservative justices may have realized that they were going to lose if they decided the constitutional issue outright, and so instead they suggested that the Court use the alternative relief requested by the utility district as a way to avoid the issue and preserve the fight for another day. (I have trouble believing that if Roberts, Scalia, Thomas et al. really had 5 votes in favor of finding preclearance unconstitutional, they for some reason decided to employ judicial restraint for about the first time in their tenures on the Court. Not really their style.)
While it would not be surprising at all for Roberts, Alito, Scalia and Thomas to be in favor of invalidating preclearance, I think Kennedy might have a harder time going along with such a decision. He was part of many of the prior decisions interpreting the VRA, and he has proven reluctant to rule with the conservative side of the Court on race issues in the past. If the constitutional question had been decided outright, it seems quite possible that a Kennedy-authored opinion would have reinforced past precedent upholding preclearance and further entrenched that law in a way that Roberts and the others on the right wing of the Court wanted desperately to avoid. Perhaps I have overread the Court here, but I do not think we necessarily should take away from this ruling a supposition that preclearance is doomed unless Congress finds a way to fix it soon.
What are the implications of this case for Georgia, where Sonny Perdue filed an amicus curae brief in support of invalidating preclearance, and John Lewis opposed? It’s hard to say. While the intention to expand use of the bail out option was clear from the opinion, it will be difficult for Georgia to utilize it. The bail out provision requires, among other things, that a jurisdiction requesting exemption from preclearance be able to demonstrate that the Department of Justice has not made any valid objections to the jurisdiction’s voting programs during the previous10 years. DoJ just objected to the citizenship verification procedures employed by Georgia in an objection served last month, and based upon my initial review of the objection it appeared to have merit. Georgia can appeal that decision to a panel of the D.C. District Court, or it can file a lawsuit seeking approval of the citizenship verification program, but in either scenario the state would need to prevail in expensive and protracted litigation in order to still be eligible for the bail out provision. Even then, bail out requests are rarely granted: just 17 have been granted since 1982. However, it is unclear whether the number of bail outs requested and granted will increase in the wake of today’s decision.
It does appear all but certain that Georgia will want and need to fight the recent DoJ objection in court in some fashion, in order to preserve at least the possibility of being able to bail out of preclearance in the next decade. Today’s opinion may have forced the state into a costly legal battle that it can ill afford during our current budget crisis, which may become an issue in the 2010 governor’s race (particularly for current Secretary of State and gubernatorial candidate Karen Handel.)
In the end, today’s decision does not change much. It is still possible that another state or municipality operating under preclearance will challenge its constitutionality outright and force SCOTUS to decide the issue. However, at minimum this decision has bought the Court time to wait and see what happens in the wake of today’s ruling. Perhaps more jurisdictions will begin successfully petitioning to bail out of preclearance, and those that remain under preclearance requirements will appear more likely to have a history that justifies such oversight. Perhaps Congress will take the initiative to reform the VRA and the preclearance requirement to remedy some of the concerns expressed by the covered jurisdictions and by the Court today. It is too soon to tell.
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