June 22, 2009
Initial Thoughts on NAMUDNO: Chief Justice Roberts Blinked
Despite Chief Justice Roberts' longstanding skepticism of the Voting Rights Act and his blistering set of questions to supporters of section 5's constitutionality during oral argument, the Chief has managed to put together a coalition of 8 of 9 Justices to put the question off for another day. To do so, the Chief had to ignore the seeming plain language of the act, as well as earlier Supreme Court caselaw on point to reach an interpretation of the Act virtually no lawyer thought was plausible. And once again he has been able to get the Court to reach an outcome he desires through statutory interpretation and the doctrine of constitutional avoidance. Still, this is a much greater victory for supporters of the Voting Rights Act (and especially for Justice Souter) than for Roberts: indeed, one price paid to get the liberals on board was a concession that the question of the standard to apply to judge Section 5's constitutionality was unsettled: it might be the strict "congruence and proportionality" standard, or it might be something much weaker, akin to rational basis. All in all, a much better day for supporters of the Act's constitutionality than I and most other observers expected. Here is some elaboration and a few additional thoughts.
1. Background. Section 5 of the Act requires jurisdictions with a history of discrimination on the basis of race to get permission, or "preclearance" from the DOJ (or a three-judge court in DC) before making any changes in their voting rules, from big changes like redistricting to moving a polling place across the street. A "covered jurisdiction" that can demonstrate under a strict test that it no longer discriminates can "bail out" of coverage under the Act. But only 17 jurisdictions (all in Virginia and all handled by Gerry Hebert---see footnote 1 of Thomas concurrence) have ever been able to bail out, and it had been understood that only states and political subdivisions that register voters (which the utility district does not) are allowed to apply for bail out. The Court avoided the constitutional question whether Section 5 exceeds congressional power because there's not enough evidence of intentional discrimination by these covered jurisdictions through a holding that the utility district is entitled to ask for bailout.
2. Justice Souter's legacy? This outcome may have been the handiwork of Justice Souter, and one of his lasting legacies. At oral argument, Justice Souter asked the following to the MUD's lawyers: "Well Mr. Coleman, this is important to me. Do you -- do you acknowledge that if we find on your favor on the bailout point we need not reach the constitutional point?" Clearly this outcome was in Justice Souter's mind early on. Justice Ginsubrg made similar points early on. But the conservative Justices did not seem convinced, as the issue was decided in the earlier City of Rome case and the language of the section seemed quite clear that the utility district could not bail out. (Indeed, in my Slate preview of the case before oral argument, I noted that "Under the leadership of Chief Justice John Roberts, the Supreme Court has not been friendly to voting rights or reasonable campaign finance laws. But so far, its retrenchment has been incremental....What's especially worrying about NAMUDNO is that the case does not provide the court with an easy incremental way out: If a majority of the justices want to side with the challengers to the Voting Rights Act, there's not much they can do short of holding the act as broadly unconstitutional....The statute allows jurisdictions that can prove they no longer engage in racial discrimination in voting to petition to bail out from coverage under Section 5. The utility district wants such a bailout. But the statute clearly says that only the entire state like Texas or a political subdivision that registers voters (which the utility district does not do), can ask for a bailout. Since there's no good statutory loophole, the larger constitutional question seems unavoidable.")
3. Chief Justice Blinks. Chief Justice Roberts was clearly hostile to the government's position during oral argument. ("Counsel, the -- the -- our -- our decision in City of Boerne said that action under section 5 has to be congruent and proportional to what it's trying to remedy. Here, as I understand it, one-twentieth of 1 percent of the submissions are not precleared. That, to me, suggests that they are sweeping far more broadly than they need to, to address the intentional discrimination under the Fifteenth Amendment."). It is clear he thinks the Act is unconstitutional under the "congruence and proportional" standard, and he's on record as believing that the plain meaning of a statute (backed by a Supreme Court interpretation no less) should generally control. So what happened here? As I've repeatedly said, the Voting Rights Act is a crown jewel of the civil rights movement, and it would be symbolically monumental to strike it down. Clearly such an opinion would have been a 5-4 decision. Either the Chief wanted to avoid the political divisiveness of such a ruling (while still getting a result he wanted) or perhaps Justice Kennedy was going to go in this direction, and the Chief thought it would be more politically expedient for the entire Court (or most of the Court) to go in that same direction. That buys him judicial minimalist credibility without costing much of anything. The biggest cost is punting on the question of the standard to apply when the constitutional question reemerges in a future case.
4. What of Justice Kennedy? He was universally seen as the key to this case. As I noted in my last point, he may have embraced the bailout position and then everything else fell into line. Or maybe the Chief took the lead here. We just don't know the role each played behind the scenes.
5. What of the future of section 5 of the Voting Rights Act? This case puts the issue off for a few years---it does not eliminate it. I see it like the first Florida case (Bush v. Palm Beach County Canvassing Board). That too was a unanimous opinion that masked deep divisions in the Court that became clear in Bush v. Gore. Eventually the section 5 question will come back to the Court, but it will likely be two or three years at the least. It may come when a state like Georgia (whose governor argued against the constitutionality of Section 5 in a NAMUDNO amicus brief) files a suit challenging the unconstitutionality. Or maybe NAMUDNO returns if the MUD cannot get a bailout. Who knows what the Court will look like at that point? If the same 5 conservative Justices are on the Court, they could well embrace the position of Justice Thomas's concurrence here, which holds section 5 unconstitutional (in a remarkably short concurrence given the importance of the question).
6. The political ramifications. The key political point is that Section 5 will remain in place during the next round of redistricting, and it will be redistricting supervised by the Obama Administration's DOJ. We have already seen that the Obama Administration appears more protective of voting rights than the Bush Administration's DOJ. So this will matter a great deal for the next decade of politics in terms of minority electoral success, even if Section 5 is struck down next decade.
6. Citizens United. I have suggested that the constitutional issue in this campaign finance case too could be skirted through the same doctrine of "constitutional avoidance." I am working on something about how important this doctrine has become in the election law field.