Hey! Hey, you! You're on page two of "Two Coming Court Cases That Will Make You Hate John Roberts All Over Again." Click here for page one.
2. Voting Rights
"Things have changed in the South," Roberts wrote in a 2009 opinion on the Voting Rights Act. "Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels."
Anybody with two eyes who's been paying attention to Voter ID and redistricting controversies know how hard Republican legislatures are working to make this statement untrue. To their consternation, Section Five of the 1965 Voting Rights Act (or the Voter Rights Act, if you're the Texas Republican Party) requires a collection of states, most of them southern, to acquire "pre-clearance" from the Department of Justice before amending any of their voting systems, due to those states' histories of discriminating against minority voters. This year, the DoJ blocked Voter ID laws in South Carolina, Florida and Texas and redistricting in Alabama. All three states are trying to take their challenges to the Supreme Court.
In 2009, Roberts argued that the threshold mandated by the VRA's Section Five "must be justified by current needs." The states are arguing that when Congress renewed Section Five in 2006, they did not meet this standard. Via WaPo:
Tatel said the 2009 decision required judges to examine two questions: whether the "current burdens" imposed by the act were justified by "current needs," and whether the discrimination "evil" Section 5 was meant to eliminate is still concentrated in the jurisdictions singled out for "pre-clearance" by federal authorities.
Tatel, appointed by President Bill Clinton, joined with Circuit Judge Thomas B. Griffith, a Bush appointee, to say that Congress had met those standards. Senior Circuit Judge Stephen F. Williams, appointed by President Ronald Reagan, disagreed. Williams noted that Congress avoided a critical look at current conditions when it reauthorized the law in 2006 and based its decision on which jurisdictions are covered by using decades-old information.
"Of course sometimes a skilled dart-thrower can hit the bull’s eye throwing a dart backwards over his shoulder," Williams wrote. "Congress hasn’t proven so adept."
There is also the fact that only some states are burdened with the pre-clearance requirement:
Plaintiffs say the Voting Rights Act unfairly applies only to selected jurisdictions rather than the entire nation. Taking up their side of the argument, [Harvard Law Professor Mark] Tushnet explains: "Indiana has a voter ID law, but Indiana isn't a covered jurisdiction. If there's reason to worry about the impact of voter ID laws on minorities in South Carolina, which is covered by the law, there's probably reason to worry about it in Indiana." (NPR)
Roberts' 2009 opinion—which had "all the subtlety of a cymbal crashing," in one legal experts phrasing—cleaerly put Section Five on the chopping block. But that was before Roberts showed himself to be committed, quite deeply it turned out, to the long-term viability of the Court. The Roberts who wrote that 2009 decision putting Section Five on notice is not necessarily the same Roberts who just did a backflip to uphold the ACA, and he may not be as eager to overturn a prime piece of legislation as he was two years ago.
Section Five has a lot going for it. It's one of the landmark laws in civil rights and voting rights history, and was renewed, for twenty-five years, with overwhelming bipartisan support in 2006:
[Former trial attorney for the Voting Section of the Justice Department under George W. Bush Michael] Pitts suggests the strong bipartisan congressional support for the 2006 extension may have set the bar too high for court intervention.
Then there's the import, and potential fallout, of overturning a landmark act of Congress. "This is widely known as one of the most successful civil rights laws in history, and to read the headlines the next day saying 'Supreme Court Strikes Down Voting Rights Act' — that headline maybe isn't one the justices want to read." (NPR)
There's also the bad taste leftover from the last time the Court meddled in electoral politics.
Still, Roberts has indicated that Section Five's days are numbered. And while he may have matured in his excellent adventure from conservative justice to steward of the court, he may also be feeling that his ACA vote was an appropriate sacrifice, and that he's earned some political capital. He might decide to use that capital by siding with Texas and South Carolina, and overturning a key portion of the Voting Rights Act.
Previous: Affirmative Action
---
Follow on Ology: Evan McMurry | PoliticOlogy
Follow on Twitter: @evanmcmurry | @OlogyPolitics
Comments (0)
Be the first to comment!