Section 5 of Voting Rights Act Narrowed But Not Struck Down

The Supreme Court today, by an 8-1 vote, narowed but did not strike down the “preclearance” provisions of the Voting Rights Act that require certain jurisdictions to get federal approval for any changes in their election laws. The opinion of the Court, written by Chief Justice Roberts, declined to address the question of whether the Voting Rights Act is constitutional but rather ruled on the narrow grounds that the utility district in question was eligible to apply for a “bailout” from the preclearance provisions if they meet certain conditions. Justice Thomas, in partial dissent, argued that Section 5 should have been ruled unconstitutional.

Despite how it looked after oral argument, I’m not actually surprised by the outcome. The Court’s conservatives have generally been much more likely to narrow civil rights legislation and major Warren Court precedents than overturn them outright, and it seemed especially unlikely that they would start a new trend with a provision of the Voting Rights Act however much they disliked it. And while I tend to be skeptical of “minimalism” in general and how the Roberts Court has used it in particular, in this case I actually think it’s meaningful and appropriate. The outcome in this case is both reasonable on its face and doesn’t completely gut the statute.

While I’m engaging in rare praise for John Roberts, I should also say that I think that conservatives do have one objection to Section 5 that I consider reasonable. As regular readers know, I have less than no use for arguments that the “sovereign dignity” of states should trump human rights, and also think that the localized American electoral system is a disaster that should be mitigated as much as possible. However, I do think Roberts has a good point when he questions the ongoing selective applicability of the preclearance provisions: “The evil that §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.” It’s not obvious to me that, say, Indiana is less likely to enact legislation restricting minority access to the ballot than Virginia or Kings County New York. To the extent that the Supreme Court is signaling that the legislation would be more easily defensible if it applied to everyone, I think they have a point (although I suspect that the Court’s conservatives may be planting a Catch-22 in which the legislation will turn out to be under- or over-inclusive depending on how Congress deals with this question.)