In an unexpectedly narrow 8–1 decision today, the Supreme Court chose not to heed right-wing voices calling upon them to strike down a key provision of the Voting Rights Act. Today’s decision in NAMUDNO v. Holder preserves — at least for now — Section 5 of the 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.
Under today’s decision, Section 5 will remain in effect, but voting districts are allowed to “bail out” of its requirements if they can show that they have not recently engaged in race discrimination and are not likely to do so in the future:
[The district] must show that for the previous 10 years it has not used any forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations; it must also show that it has “engaged in constructive efforts to eliminate intimidation and harassment” of voters, and similar measures.
It’s not entirely clear what today’s decision means for the Act’s future. Tom Goldstein predicts that the Court is simply giving Congress a brief window to amend Section 5 themselves before the Court takes the 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.”
Goldstein may be right — he’s been right before — but the Roberts Court has hardly shown the kind of judicial restraint that Goldstein suggests it engaged in today. Just last week, for example, the Supreme Court ignored both precedent and its own internal rules to eliminiate a particular kind of suit brought by victims of age discrimination. Justice Thomas’ opinion in that case, made no bones about the fact that the Court’s conservatives were at peace with ignoring precedent because “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance. In other words, when the conservative bloc has five votes, they feel no compunctions about doing whatever they please — so today’s modest opinion may be a sign that Chief Justice Roberts and his co-ideologues lack the fifth vote necessary to toss out Section 5.
One thing that is absolutely clear, however, is that the Section 5 remains absolutely necessary to American democracy, no matter what Chief Justice Roberts may think. The Department of Justice has blocked literally hundreds of new voting procedures since the Voting Rights Act was last reauthorized in the 1980s, each time determining that the new procedure discriminated on the basis of race. Moreover, some of the states’ attempts to discriminate against their own voters have been quite audacious. As voting rights attorney Nina Perales explained at a recent American Constitution Society panel, for example, Texas’ governor recently tried to sway a Congressional race away from Mexican-American voters’ preferred candidate by scheduling the election during a Mexican religious festival:
America dodged a bullet today. Hopefully, the Court’s conservatives will keep their guns holstered in the future.