The Independent View: My Option for the Supreme Court Voting Rights Case

Today, the Supreme Court will hold a scheduled oral argument on the constitutionality of two key sections of the Voting Rights Act of 1965, in the case of Shelby County v. Holder (docket 12-96). Shelby County urged the Court to strike down those provisions and will be argued by Bert W. Rein of the Washington, D.C., law firm of Wiley Rein LLP. Dividing time in defense of the law will be the U.S. Solicitor General, Donald B. Verrilli, Jr. and Debo P. Adegbile, an attorney with the NAACP Legal Defense Fund in New York City, representing individual voters and other private defenders of the law.

My option would be to modify the opt-out (“bailout”) opportunity already in the law.

Just as the Court passed up the opportunity in 2009 to strike down the 1965 Act’s provisions, it could do so again this time, and perhaps with a variation of the back-up approach it took then: expanding the opportunity for jurisdictions to declare themselves beyond the law because they no longer discriminate against minority voters. But this is somewhat questionable, because it gets the Court into the business of rewriting a law of Congress, or at least seeming to do that.

Under the law, a jurisdiction can get out from under Sections 4 and 5 if it can show a ten-year record of non-discrimination. It is difficult to know how that very specific formulation could be changed by the Court without it getting into actual legislative drafting. Perhaps the Court might strike down the ten-year “clean hands” record, and tell Congress to find something that makes it easier to bail out. I would change it to 5 years.

The jurisdiction that is directly involved in this case, Alabama’s Shelby County, cannot qualify for the existing bailout, because it simply does not satisfy the ten-year minimum of “clean hands.”

The federal government and the other defenders of the 1965 Act are pushing the bailout option strenuously, in hopes that it would be the way to salvage Sections 4 and 5, and thus the heart of the Act.

With all the current laws making it harder for some to vote, I would like to see voters use the part of Section 4 that allows them to partition for the Justice Department to examine a bailout county or state and see if they have failed a bailout, and if proven, put them back on preclearance.

UPDATE
Following through on the deep constitutional concerns stated in its prior Northwest Austin decision, a majority of the Court seems committed to invalidating Section 5 of the Voting Rights Act and requiring Congress to revisit the formula for requiring preclearance of voting changes. The vote seems quite likely to be five-to-four. The more liberal members pressed both the narrow argument that an Alabama county was not a proper plaintiff because it inevitably would be covered and the broader argument that there was a sufficient record to justify the current formula. But the more conservative majority was plainly not persuaded by either point. It is unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.