Two years ago, the Supreme Court surprised most Court watchers by not striking down Section Five of the Voting Rights Act, which requires voting districts who have historically engaged in discrimination to “preclear” any new voting rules with a federal court or the Department of Justice before those rules can go into effect. Yet, while the justices allowed the law to survive, they dealt it a severe blow — permitting voting districts to “bail out” of the law if they can show that they have not recently engaged in race discrimination and are not likely to do so in the future.
Yesterday, Arizona decided that being able to bail out isn’t good enough. They want one of the backbones of American civil rights law tossed out entirely:
Arizona Attorney General Tom Horne, a Republican, said that the portion of the law requiring the state to get prior approval from the Justice Department for any changes to the state’s election laws exceeds Congressional authority and is unconstitutional.
“The portions of the … Act requiring preclearance of all voting changes are either archaic, not based in fact, or subject to completely subjective enforcement based on the whim of federal authorities,” Horne said in a statement.
The Arizona lawsuit mostly apes the claims from the 2009 decision that weakened the law. It argues that Section Five unfairly singles out certain states without requiring every voting district in the country to seek preclearance. Yet Arizona also raises a new and deeply radical objection to the law, claiming that the VRA “exceeds Congress’s authority under the 14th and 15th Amendments because it suspends all changes to state election law – however innocuous – until preclearance is given by the federal government.” If this theory were actually adopted by the Supreme Court, it would mean that the Voting Rights Act was unconstitutional the day it was first signed in 1965.
There is legitimate reason to fear that Arizona will win its claim, however, at least on the somewhat narrower grounds that Congress was wrong to apply the law to some states and not others. In the 2009 oral argument, the Court’s conservatives were very skeptical of Congress’ decision to reauthorize the Voting Rights Act without updating the list of states subject to preclearance to reflect which states are currently most guilty of voting rights violations. Supreme Court uberlawyer Tom Goldstein predicted back then that the Court was simply giving Congress a brief window to update Section Five before they take a hatchet to it; “[i]f the statute remains the same by the time the next case arrives,” Goldstein warns, “the Court will invalidate the statute.”
If Goldstein is right, and he’s has a history of being right, the real culprit here is likely the Senate’s broken rules. It’s unlikely that a majority of the 111th Congress wanted to see one of the most effective civil rights laws in American history die in the Roberts Court, but the Senate’s nearly unlimited opportunities for obstructionism left them with no time to actually update the law and still accomplish many of their other priorities.