Supreme Court Upholds 1965 Voting Rights Act but Hints at Change

By Robert Barnes
Washington Post Staff Writer
Tuesday, June 23, 2009; A01

A key part of the landmark Voting Rights Act survived a constitutional challenge yesterday in the Supreme Court, but justices made it clear that a law forged in the darkest days of the nation's civil rights struggles may no longer be appropriate in a new era of American racial politics.

A surprisingly unified court found a compromise that allowed it to sidestep questions about whether the key provision of the law is constitutional, thus avoiding a divisive showdown with Congress, which just three years ago found that the 1965 act was still needed. But the opinion by Chief Justice John G. Roberts Jr., joined by the court's liberal members, raised doubts about whether the law's restrictions would survive a future challenge.

Civil rights activists, braced for a defeat from a court increasingly skeptical of race-based government policies, said the outcome was the best they could have hoped for. But conservatives, who had questioned the need for the requirements in a country that just elected its first African American president, found reason for hope in the court's blunt questioning of whether Congress had made the case for its extension of the law.

Experts said the key provision of the law appeared to have received more of a stay of execution than a reprieve.

"I tend to think the Voting Rights Act is living on borrowed time," said Nathaniel Persily, a Columbia University law professor whose work was cited in the opinion.

Justice Ruth Bader Ginsburg had earlier called the case "perhaps the most important of the term," and the court's 8 to 1 decision for now leaves in place the heart of the act: the Section 5 provision that requires federal approval for any changes in election laws or redistricting decisions in nine states, mostly in the South, and parts of seven others. That provision was deemed necessary in the original act to combat discrimination in those states and what was at the time a steadfast resistance to minority voting rights.

Supporters of the law noted that the decision means the provisions probably will be in place to guide the electoral redistricting plans required by the 2010 census.

"It's fair to say this case was brought to tear the heart out of the Voting Rights Act, and today that effort failed," said Debo Adegbile, lead attorney for the NAACP Legal Defense and Educational Fund.

The court said Congress's actions in extending Section 5 "raise serious constitutional questions," but Roberts wrote that "the importance of the question does not justify our rushing to decide it." Instead, the court made it clear that all political subdivisions covered by the act were free to make the case to federal officials for an exemption.

So far, only 17 subdivisions of the 12,000 covered by the act -- all of them in Virginia, including Fairfax City -- have "bailed out" of Section 5's restrictive provisions.

The nearly unanimous decision -- only Justice Clarence Thomas, the court's lone African American, found the provision unconstitutional -- masked the court's deep divisions about the act. During oral arguments, the court's conservative majority was openly critical of the requirements and sharply questioned whether some states were being treated differently because of past discrimination rather than current conditions.

When Congress reauthorized the law in 2006, it retained the Section 5 restrictions on the same states -- Virginia, Alaska, Alabama, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas and parts of seven others -- without an examination of whether some should be removed or others added.

"The South has changed," Roberts wrote in what some experts interpreted as a warning to Congress. "The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions."

Thomas said that was reason enough to find the provision unconstitutional. "The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains," Thomas wrote. Neither the opinion nor the dissent mentioned President Obama's election.

Roberts said that finding an act of Congress unconstitutional is the "most delicate" task the justices have and that there was no reason to do so now. The court instead said the municipal utility district in Austin that had served as the test case was eligible to apply for a bailout, something a lower court had said the law did not allow.

The decision seemed in tune with Roberts's stated goal of deciding cases as narrowly as possible and avoiding what probably would have been another divisive ruling for the court on an important constitutional issue.

Persily called it "an example of real statesmanship by Chief Justice Roberts." Another expert on election law, Richard Hasen of Loyola Law School in Los Angeles, said the chief justice "blinked" after his long-standing criticism of the law and other government policies on race.

Ellen Katz, a University of Michigan law professor, said the court may have decided that after the way the Voting Rights Act revolutionized minority voter participation in America, "its fate ought not be the Supreme Court striking it down."

The case is Northwest Austin Municipal Utility District Number One v. Holder.

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