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Is Anyone Watching?—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on February 23, 2011.

Is Anyone Watching?
By Linda Greenhouse ’78 MSL

Two years ago, the Supreme Court looked over a cliff and decided not to jump. The question was whether a core section of the Voting Rights Act of 1965, as renewed by Congress in 2006 for another 25 years, was constitutional. A majority opinion by Chief Justice John G. Roberts Jr. strongly suggested that it wasn’t.

The section’s provisions “raise serious constitutional questions,” the chief justice said. He suggested that the administrative burdens the law places on the states where black citizens once faced nearly insurmountable obstacles to voting were no longer justified: “Things have changed in the South.” During the April 2009 argument in the case, Northwest Austin Municipal Utility District v. Holder, Chief Justice Roberts and Justice Anthony M. Kennedy, in particular, appeared exasperated by the failure of Congress to take those changes into account when it renewed the law in the same format as the previous renewal in 1982. An iconic achievement of the civil rights era seemed headed for history’s dustbin, most likely by a vote of 5 to 4, and an anticipatory outcry began to build.

But then either the chief justice or Justice Kennedy, or maybe both, blinked. There was no need to reach the constitutional issue, the eventual opinion held, because the tiny Texas utility district that had brought the challenge was entitled to try to “bail out” of the law’s coverage. A successful bail-out would moot the constitutional challenge. This was a most implausible reading of a statute that offered the bail-out opportunity only to political subdivisions, which the utility district, providing sewer service to 3,500 residents of Travis County, Tex., is not. But this non-decision decision – to which only Justice Clarence Thomas objected, arguing forcefully that the court should declare the section unconstitutional then and there – served to take the justices out of a spotlight they no longer welcomed.

Against this background, the nearlycomplete absence of attention received by another Voting Rights Act challenge is surprising. The new case was argued earlier this month in Federal District Court in Washington, D.C., and will almost certainly make its way to the Supreme Court. There appears to be no convenient off-ramp. The jurisdictionbringing the case, Shelby County, Ala., can’t qualify for a bail-out because it doesn’t meet the law’s requirement of a 10-year record without voting-rights enforcement problems.

Shelby County is a largely white, heavily Republican (John McCain received 76 percent of the vote there in the 2008 presidential election) central Alabama county that includes part of Birmingham. Its effort to have Section 5 of the Voting Rights Act declared unconstitutional is being funded by a Virginia-based organization called the Project on FairRepresentation, which according to its Web site exists to provide pro-bono representation to “political subdivisions and individuals that wish to challenge government distinctions and preferences made on the basis of race and ethnicity.” On the subject of voting, the group’s mission is “reforming those provisions of the Voting Rights Act and other laws that encourage and mandate the creation of racially gerrymandered voting districts.” (That is hardly an accurate description of the Voting Rights Act, given that the Supreme Court, in a series of cases beginning with Shaw v. Reno in 1993 [ 509 U.S. 630 ] has declared that districts drawn for purely racial reasons are unconstitutional. But my point here is to describe the origins of the current lawsuit, so I’ll move on.)

The Project on Fair Representation, in turn, is funded by an organization called DonorsTrust, the goal of which is to “promote liberty through limited government, personal responsibility, and free enterprise.” An affiliated group, Donors Capital Fund, has channeled millions of dollars to the State Policy Network, which describes itself as a group of “state based freedom fighters working to stop the expansion of the federal government and return power back to individuals.” Whitney L. Ball, president and chief executive officer of DonorsTrust, serves on the boards of the State Policy Network and Donors Capital Fund.

Of course, interest-group organizations bring, fund and participate in litigation all the time. The NAACP Legal Defense and Educational Fund, Inc., for example, has intervened in the Shelby County case, on the side of the federal government, to defend the Voting Rights Act. No surprise there. But the identity of the right-wing/states’-rights/libertarian network in which this lawsuit is nested serves to underscore the larger stakes: not only the future of the Voting Rights Act, but the power of Congress. The players certainly understand this. The implications of this case, in the midst of the historic debate now going on over the power of the federal government, make it well worth watching closely.

Section 5 of the Voting Rights Act is, indisputably, an unusual piece of legislation. It does not apply, as the rest of the law does, to the whole country. Rather, it requires nine southern states and parts of another (40 of North Carolina’s 100 counties) to submit any change in voting procedure, from redistricting an entire state to moving a single polling place from one location to another, for “preclearance” by the Department of Justice or a three-judge federal court in Washington.

Congress’s point in 1965 was that, given their history, these “covered jurisdictions” could be expected to manipulate even the tiniest details to keep black voters from the polls. Critics of the Voting Rights Act – and Chief Justice Roberts has been one for a long time, as was his mentor and predecessor, Chief Justice William H. Rehnquist – see the heavy hand of the federal government weighing on a region where progress inrace relations and black political participation over the past 40 years is indisputable.

Indisputable but not yet sufficient, in the judgment of Congress, which held 21 hearings on whether to reauthorize Section 5 before voting to do so in 2006. Both houses of Congress were thenunder pre-Tea Party Republican control. The vote in the House was 390 to 33, and in the Senate 98 to 0.

The constitutional basis for the reauthorization, which President George W. Bush signed, was Congress’s power to enforce, “by appropriate legislation,” the 15th Amendment’s protection against denying or abridging the right to vote “on account of race, color, or previous condition of servitude.” The question now, as it appeared to be two years ago, is how much deference the courts should give to the congressional judgment that a particular piece of vote-protective legislation is “appropriate.” Days after hearing nearly three hours of argument, Federal District Judge John D. Bates ordered both sides to submit supplemental briefs citing “specific instances in the legislative record” to demonstrate why it was or was not “rational in both practice and theory” to keep Section 5 in place on the same terms for the future as in the past.

The new briefs were submitted last week. Where one side sees sufficient progress to render Section 5 obsolete, the other sees continued racial polarization and strategies that, while not physically keeping black voters from the polls as in the past, serve to dilute impact of black and Latino votes. The two sides remain far apart on which facts aboutvoting patterns are relevant and on how those facts should be weighed. The answers to those questions, almost certainly, will come eventually from theSupreme Court.

For much of the past year, public discussion about the court – when not distracted by hyper-ventilating accounts of whom various justices are breaking bread with – has focused on campaign finance, the rights of corporations and the future of the health-care legislation. This focus, while amply justified, has obscured the fact that race remains an unfinished project of the Roberts court. Back in 2009, just a week after punting on the Voting Rights Act case, the court ruled that New Haven, Conn., had violated the rights of white firefighters under federal anti-discrimination law by refusing to certify the results of a promotion exam on which no black test-takers had scored high enough to qualify.

That decision, Ricci v. DeStefano, was based on an interpretation of a federal statute, Title VII of the 1964 Civil Rights Act. But opinions filed in that case, both the majority opinion by Justice Kennedy and, more explicitly, Justice Antonin Scalia’s concurring opinion, raised the question of whether Title VII itself might be open to constitutional attack.

The law, as amended by Congress in 1991, permits imposing liability on employers for practices that have the result of disadvantaging minorities workers – educational qualifications that are higher than necessary, for example – without requiring proof of discriminatory intent. Doesn’t that threat of liability for mere “disparate impact” require an employer to be racially conscious, to “place a racial thumb on the scales,” Justice Scalia asked. And doesn’t that violate the racial neutrality that recent Supreme Court decisions have insisted on?

Along with the future of the Voting Rights Act, that question has hung heavy, and unanswered. While no one is watching, time may be running out.