[with apologies for the delay in posting as the Election Law Blog server was down.]
The Supreme Court’s order today (coming, probably not coincidentally right after, rather than right before the election), was hardly unexpected. We’ve all been expecting the Court to take this case, and, I suspect use it as a vehicle to strike down the preclearance provision of the Voting Rights Act. Here’s what I wrote last month on SCOTUSBlog:
The Supreme Court’s 2009 decision in NAMUDNO v. Holder was an invitation to Congress to go back and make changes to Section 5 of the Voting Rights Act to keep the Court from striking down the provision as an unconstitutional exercise of Congressional power. At oral argument, both Chief Justice Roberts and Justice Kennedy – believed to be the key votes in this case – expressed considerable skepticism about requiring only some jurisdictions (mostly in the South) but not the rest of the country to get permission from the federal government for all changes in their voting rules, from redistricting to voter id to moving a polling place. NAMUDNO was in effect a remand, perhaps an act of statesmanship by Roberts, Kennedy, or both, to give Congress more time to rework the Act. Yet Congress did not respond, and now the Court seems almost certain to take either the Shelby County v. Holder case or another case soon, and likely to strike down the Act. In this post I ask, why did Congress fail to act to fix the Act after NAMUDNO?
What’s especially notable about today’s cert grant is that the Court mildly rewrote (adding in the 14th amendment question) and limited the question presented to the following: “”Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”
This means that the Court will focus specifically on the question whether Congress exceeded its power in not updating the coverage formula—states and parts of states are covered based on voter turnout and the use of a test or device in 1964, 1968, or 1972. The argument is that Congress couldn’t use those proxies anymore to identify states which still need additional federal oversight. It is exactly the argument which Chief Justice Roberts latched onto at the oral argument in NAMUDNO. Further, the references to the 10th amendment power of the states and the republican form of government clause show a great concern about federalism and states rights, a high concern of Kennedy. Kennedy and Roberts are likely the swing Justices here—if they swing at all, it is only for prudential reasons about what it would mean politically to overturn the Act.
Coming after the reelection of an African American president and rising minority turnout, I have little doubt these Justices will say, as Roberts said in a campaign finance case, “Enough is enough.” [UPDATE: Someone asked me to clarify this point. Here's the clarification: I meant that in the campaign finance context, Roberts in Citizens United was done with half measures to try to save campaign finance law. Similarly, he will see that there's no need to try to use half measures, as in NAMUDNO, to save the Voting Rights Act.]
I don’t expect statesmanship or blinking from Court conservatives this time.