- The Washington Times - Tuesday, June 23, 2009

The attorney general and civil rights groups are claiming victory with the Supreme Court’s decision not to strike down key parts of the 1965 Voting Rights Act, but others warn that the court’s ruling also opens the door for future constitutional challenges to the landmark civil rights law.

The Supreme Court decided in a narrow ruling Monday that a small voting district in Texas can seek to be exempted from a key provision of the Voting Rights Act known as Section 5, which forces districts covered by the law to get Justice Department approval before making any changes to voting procedures.

That ruling allowed the court to avoid ruling on the larger question of whether Section 5 of the Voting Rights Act is constitutional, as many analysts had hoped or feared it would.

“The historic accomplishments of the Voting Rights Act are undeniable, but the act now raises serious constitutional concerns,” Chief Justice John G. Roberts Jr. wrote in the court’s opinion.

But Chief Justice Roberts also wrote that “the importance of the question does not justify our rushing to decide it. Quite the contrary: Our usual practice is to avoid the unnecessary resolution of constitutional questions.”

All nine justices agreed that the Austin utility district should be allowed to seek permission to opt out of the law’s requirements, but Justice Clarence Thomas wrote a separate opinion arguing that Section 5 is unconstitutional.

“Obviously, the ruling leaves for another day the larger constitutional question regarding Section 5,” said Michael Toner, former chairman of the Federal Elections Commission. “When you have eight justices emphasizing there are ‘constitutional questions’ with Section 5, the odds are very good the court is going to to be revisiting this issue in the near future.”

Despite the potential of future litigation, Attorney General Eric H. Holder Jr. and liberal groups, including the NAACP and the Lawyers’ Committee for Civil Rights Under Law, praised the decision for leaving in place the key provisions of the law.

“As a nation, we have made great strides in advancing and protecting civil rights in the past 44 years since the Voting Rights Act was first passed,” Mr. Holder said in a statement. “But there is still more work to be done to fulfill the promise of full voting rights, free from discrimination, for all Americans.”

Debo Adegbile, the NAACP Legal Defense and Educational Fund lawyer who argued for the law before the justices, was more pungent, saying “the utility district brought this case to tear out the heart of the Voting Rights Act. Today, it failed. The Voting Rights Act remains one of Congresss greatest legacies.”

The Supreme Court heard arguments in April, months after the nation elected its first black president. In many ways, the case was seen as an assessment of how far race relations in the United States have progressed.

The Voting Rights Act has changed little since its inception and has been reauthorized by Congress several times, most recently in 2006 for 25 more years. Section 5 requires the Justice Department, in a process known as “preclearance” to approve any changes in voting procedures in areas of 16 states that have a history of racial discrimination - almost exclusively in the South.

Voting districts were allowed to petition a three-judge panel in Washington to be allowed out of Section 5’s requirements, which is known as a bailout and requires a district to prove it has had no incidents of voter discrimination for a decade. But such bailouts were rare; only 17 of the 12,000 districts covered by Section 5 have received bailouts.

The Northwest Austin Municipal Utility District No. 1, a five-member elected board in Texas created in 1987 that mainly manages financial issues, had sought a bailout, arguing that Section 5 is outdated. A three-judge panel in Washington ruled the district was ineligible for a bailout because registering voters was not one of its responsibilities, which had generally limited to the right to seek bailouts to larger political districts, such as counties.

But the Supreme Court reversed that decision, ruling that the lack of registering voters does not preclude the Texas district from seeking a bailout. The high court’s decision also means other similar districts could be eligible for bailouts, though it is unclear exactly how many others that may be.

“The court has simply postponed the day when it will be forced to confront the tough constitutional issues that the perpetuation of a radical provision in the act poses,” said Abigail Thernstrom of the conservative American Enterprise Institute, a vice chairman of the U.S. Commission on Civil Rights.

“In time, however, it will surely have to decide whether a racially transformed America still justifies a constitutionally extraordinary provision enacted in the context of a very different South in a bygone era,” she said.

Tom Fitton, president of the conservative Judicial Watch, went a step farther saying the “decision is a first step towards a more reasonable federal voting rights policy that doesn’t ride roughshod over the rights of states.”

“Every justice agrees that current policies raise serious constitutional concerns,” he said. “It is quite a surprising ruling.”

Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, bristled at the court’s “constitutional concerns” of Section 5, saying “there is no more explicit constitutional grant of power to the Congress than in the second section of the 15th Amendment to protect the right to vote.”

“The Supreme Court has shown insufficient deference to the authority and consideration of Congress,” Mr. Leahy said in a statement, referring to the 2006 reauthorization of the Voting Rights Act.

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