Attentive readers will (I hope) have noticed that I’ve not posted much lately. My wife and I have been in California visiting our daughter (who, by the way, has just had an important article accepted by a major journal; more on that some time later), and I’ve fallen behind.
I’ll try to catch up when I can (meanwhile, enjoy your breather), but now that I have an online minute I’d like to point you to the excellent discussions of the Supreme Court’s recent decision on Section 5 of the Voting Rights Act by Hans Bader, Roger Clegg and Todd Gaziano. I’m sure more will come later; watch for UPDATEs.
UPDATE [24 June]
Here’s one of those UPDATEs.
Abigail Thernstrom, vice chairman of the U.S. Commission on Civil Rights and author of the two best books on voting rights, reports that not only did the Supremes not “gut” Section 5, they didn’t even limit it significantly. “The Supreme Court on Monday punted on the most an ticipated case of the year, she writes, “but perhaps that was the wisest move.”
The plaintiffs hoped the high court would declare the provision no longer a legitimate exercise of congressional power under the Fifteenth Amendment. And the court is prepared to address the questions raised by Section 5, Chief Justice John Roberts made clear.
But this case, he declared, could easily be resolved on a narrow, technical matter — so the justices simply granted the Texas district’s request for the right to petition to “bail out” from Section 5’s coverage.
This fine-tuning of the bailout provision will do little to change the law. The real significance of this case lies in what was foreshadowed….
The decision clearly invites another case that properly frames the core constitutional issues. Should Georgia but not Ohio still be singled out for extraordinary federal oversight? Why Brooklyn, but not Queens? By what logic?
Equally important: When the Justice Department uses its preclearance powers to insist on racially gerrymandered districts, will Section 5 withstand constitutional scrutiny? Safe black districts were arguably a necessity when not even southern white Democrats would vote for black candidates. That is no longer the case.
Thernstrom also persuasively points out that a better Supreme Court opinion “would have driven today’s Congress to “fix” the provision so as to undo the high court action,” at least insofar as such an opinion was based on an interpretation of the statute rather than the Constitution.
