History of Voting Rights Act
Enacted in 1965, the Voting Rights Act is the most potent legislative response to voter disenfranchisement in the history of the United States. Although the 15th Amendment prohibits the denial of voting rights on the basis of race, until the 1960s, this constitutional provision went largely unenforced in most of the Southern states. During Reconstruction, President Grant frequently dispatched Union forces to protect blacks from violence at the polls. Even this support, however, could not prevent violence, such as the 1872 Colfax Massacre in Grant Parish, Louisiana. During the Colfax Massacre, 150 blacks were murdered as they attempted to secure the county courthouse from white Democrats who unlawfully claimed control. Until the passage of the Voting Rights Act, blacks in some Southern states could not vote whatsoever, due to racial terrorism and laws such as "poll taxes," which impeded political participation.
The Voting Rights Act forbids policies such a poll taxes that were blatantly designed to evade the 15th Amendment. It also prohibits any election law that systematically denies voting rights to a defined racial group.
Section 5: Preclearance Requirement
Section 5 of the Voting Rights Act requires that certain states that were among the worst infringers of the right to vote must get "preclearance" from the Department of Justice before enacting any changes to their election laws. This rule applies to political subdivisions -- like cities and counties -- within those states as well.
The 15th Amendment authorizes Congress to enforce its terms with "appropriate legislation." Since the passage of the Voting Rights Act, Congress has reauthorized Section 5 several times, most recently in 2006 -- for 25 additional years.
The Litigation Challenging Section 5
In Northwest Austin Municipal Utility District Number One v. Holder, the plaintiff, a subdivision of Austin, Texas, sued the United States, arguing that Section 5 exceeds the scope of Congress's authority to enforce the 15th Amendment. The plaintiff argued that because it was never found to have denied voting rights to persons based on race, it need not comply with the preclearance requirement. The lower court denied relief to the plaintiff. Today, the Supreme Court unanimously reversed the judgment below. Justice Thomas dissented in part from the Court's reasoning, but he concurred in the decision to reverse the judgment of the lower court.
Although the plaintiff asserted that Congress has exceeded its authority by requiring preclearance, it also contended that the Voting Rights Act contains a statutory "bailout" provision that allows subdivisions to escape the preclearance requirements under certain conditions. The plaintiff argued that it should prevail under either the statutory or constitutional claim.
The statutory claim gave the Court an escape hatch. Rather than resolving the controversial issue regarding the constitutionality of preclearance, the Court punted the issue and decided the case on statutory grounds alone. It reversed the lower court and held that the plaintiff should be able to prove that it meets the conditions for the statuturoy bailout. The case will now go back to the District Court for proceedings that concentrate on the bailout provision.
Justice Thomas, the lone dissenter, agreed that the lower court misapplied the statutory bailout provision, but he would have reached the constitutional question. Thomas would have held that the preclearance requirement exceeds the scope of Congress's authority to enforce the 15th Amendment.
The Supreme Court as Political Player
By declining to address the constitutional question, the Court has avoided deciding a very complex issue that divides many lawyers, legal scholars, and politicians. Many conservatives believe that the preclearance provision is unfair and unnecessary, while liberals argue that preclearance has allowed for the successful political participation of blacks and Latinos and that this success should mean the continuation, rather than cessation, of the policy. In 2006, conservatives in Congress deep expressed concern regarding preclearance, but they ultimately voted strongly in favor of reauthorization, perhaps fearing a backlash prior to the midterm elections.
These same political calculations could have motivated conservatives on the Court, who undoubtedly disagree with preclearance (as indicated by the multiple reservations expressed in the Court's opinion), but who, nevertheless, believe that a ruling against Congress on this important issue could damage the "legitimacy" of the Court and further erode support for conservatives (particularly in light of the likely reversal of Ricci v. DeStefano).
Because the Court did not rule definitively on this issue, however, it will probably reappear in subsequent litigation. Depending on the politics of the moment and the composition of the Court, a subsequent case could provide the opportunity for conservatives to invalidate a remedial statutory measure that Congress strongly supports and that most political scientists, historians and legal experts credit for removing severe structural barriers to political participation among persons of color.
See additional coverage at the SCOTUS Blog.
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