HRC Blog

In this blog series, HRC attorneys discuss news and break down legal theories relevant to a U.S. Supreme Court nomination and the pending retirement of Justice David Souter. The Supreme Court on Monday, in an 8-1 decision (Justice Clarence Thomas, concurring in part, dissenting in part), avoided deciding the constitutionality of a major section of the historic Voting Rights Act of 1965 brought by a utility district in Austin, Texas. The Act, regarded by many as the most successful piece of civil rights legislation ever enacted, still stands in what was arguably the most anticipated case of the term. Instead, the Court ruled on the utility district’s alternate challenge to the lower court’s refusal to consider it eligible for a “bailout” under a special provision of the Act. The district, an entity previously ineligible for a chance to be exempt from Section 5’s “preclearance” requirements, has been successfully recognized as a qualifying “political subunit” under the Act. The case now returns to the lower court to determine whether the utility district can show a clean record of nondiscrimination over the last ten years to secure its bailout. The Section 5 “preclearance” provision that the utility district now seeks to exempt itself from plays a critical role within the larger Voting Rights Act. It ensures the ability of minority voters to participate equally at the polls by requiring certain state and local governments with a proven history of discriminatory voting practices to obtain federal approval before changing any voting procedures. Preclearance is obtained either from the U.S. Department of Justice or the D.C. District Court. Although not a permanent law, after being passed in 1965, Section 5 has been reauthorized by Congress several times, most recently in 2006. It is set to expire in 2032. Before Monday, only a state, county, or type of jurisdiction deemed eligible could seek to bail out, effectively exempting it from Section 5 requirements. The Court found an alternate interpretation of the statute which now allows the over 12,000 political subunits like the utility board the opportunity for bailout. During oral arguments on April 29, as the Justices centered their discussion on the constitutional question, they appeared poised to decide the fate of Section 5. At times, members of the Court vigorously defended the provision, citing Congressional findings relied on as evidence for the continued need for Section 5. Justice Souter pointed out the remaining 16-point registration difference between Hispanic and non-Hispanic, white voters in Texas. Addressing the attorney for the utility district, Souter said, “I don’t understand with a record like that how you can maintain as a basis for this suit that things have radically changed. They may be better. But to say they have radically changed to the point that this becomes an unconstitutional Section 5 exercise within Congress’s judgment just seems to me to deny the empirical reality.” Despite hints of support among some of the Justices during oral arguments, Monday appeared to ensure defeat as Chief Justice John Roberts began his opinion with acknowledgement of the “serious constitutional concerns” surrounding Section 5. However, Roberts threw an unexpected curve ball when he invoked the constitutional avoidance doctrine, requiring the Court to resolve a case on non-constitutional grounds when possible. The doctrine ensured that Section 5 would live to see another day. Although the decision certainly represents a victory for fair voting practices, the victory is qualified as the future of Section 5 is far from secure. None of the more liberal voting bloc bothered to write a concurring opinion to express any support of the constitutionality of the provision. And putting Monday’s nearly unanimous decision aside, oral arguments indicated that five Justices (Alito, Kennedy, Roberts, Scalia, and Thomas) may have been tempted to strike down Section 5. With the retirement of Justice Souter, one of the staunchest defenders of the Act, it remains to be seen what impact, if any, Sonia Sotomayor can have on the future of the provision.  Learn more about federal judicial nominations and follow our work on these crucial issues on HRC’s Equality in the Courts page. This post contributed by HRC McCleary Law Fellow Anthony Catalino.