The Supreme Court heard oral argument today in a lawsuit challenging Section 5 of the Voting Rights Act. That section requires certain states, and jurisdictions within states, to obain “pre-clearance” from the Justice Department or a federal court before making any change in their electoral law or procedures. Justice Kennedy, normally the “swing” vote in these kinds of cases, seemed skeptical (at least in the recorded excerpts I heard) as to whether this infringement on the sovereignty of selected states was justified by the record Congress relied on in 2006 when it extended Section 5 for another 25 years. Kennedy was clear that such a limitation on state sovereignty requires a high burden of proof that the state cannot be trusted to run a non-racist election system.
Unfortunately, Justice Kennedy has a tendency to sound fairly solid at oral argument and then to go “wobbly” when it comes time to write and vote. This seems to be particularly true in cases involving issues of race. If there’s a middle ground to be carved out, never bet against Kennedy getting a knife.
Even before the election of Barack Obama, it was clear that southern states (the ones laregly saddled with Section 5) are nothing like they were in 1965, when the Act was passed, when it comes to minority voting rights. The Wasington Post inadvertently drove this point home in a story about the case this morning.
The reporter, Robert Barnes, led of his story this way:
Conservative legal activists who mean to liberate the mostly Southern states that bear the biggest burden under the Voting Rights Act lack support from a key group: The mostly Southern states that bear the biggest burden under the Voting Rights Act.
Noting that none of these states filed a brief supporting the challenge, Barnes suggested (in what purports to be a news piece, not “analysis”) that the absence of such briefs means that the states are not burdened by Section 5, and that the constitutional challenge is a trumped up vehicle for conservative legal activism.
But it is at least as plausible to argue that the legal posture of the southern states demonstrates the absence of any need for the states in question (though not necessarily all jurisdictions within those states) to pre-clear their voting procedures. If the states had any interest in engaging in racial discrimination against any group of voters, they likely would have supported a suit that, if successful, will givie them more autonomy.
As I see it, the pre-clearance requirement is understood to be an affront to the states, but the politicians who run the states would rather not alienate minority voters by lending support to a suit trying to change a law that played such a positive transformative role. That same instinct means that there is no longer any need for the pre-clearance mechanism.