Voting rights provision ruled unconstitutional

[jimmy olsen]

I'm surprised they didn't address the larger issue at stake.
http://www.cnn.com/2009/POLITICS/06/22/scotus.voting.rights/

Voting rights provision ruled unconstitutional

By Bill Mears
CNN Supreme Court Producer

WASHINGTON (CNN) -- The Supreme Court compromised Monday in a major voting rights case, finding that a powerful enforcement tool in the landmark Voting Rights Act was being applied too broadly.

However, the decision avoided the larger issue of whether the federal government should continue to have oversight to ensure local areas are free of voter discrimination.

By a unanimous vote, the justices allowed states and local communities more power to challenge the "preclearance" provision of the 1965 law. That provision provides continuing federal control over election practices in 16 states, based on past discrimination against minority voters.

Other states are not covered by the provision even if they, too, might discriminate against minority voters.

"Things have changed in the South. Voter turnout and registration rates now approach parity," Chief Justice John Roberts wrote. "Past success alone, however, is not adequate justification to retain the preclearance requirements.

"The Act imposes current burdens and must be justified by current needs."

The 9-0 vote reflects the consensus the justices reached, putting aside for now the larger, more difficult questions on race and discrimination.

At issue is whether in 2006, Congress properly extended the law -- whose Section 5 mandates that the covered states get advance approval of changes in how their elections are conducted -- or whether the country has made enough progress on racial equality to make continued federal oversight essentially unnecessary.

The case involves a small homeowners association board outside Austin, Texas. In 2003, residents of the Canyon Creek planned community sought to move their polling place to an elementary school that is the neighborhood's polling place for all other elections. Such a move required federal approval under Section 5.

The court's ruling makes the Texas district eligible to "bail out," or become exempt from federal oversight. But it does so without resolving the larger constitutional questions of when race-based solutions can be used to remedy past and present discrimination. Such a narrow ruling upholds the law, for now.

But Roberts noted in his ruling that the preclearance provision raises "serious constitutional questions." And he added that it "represents an intrusion into areas of state and local responsibility that is unfamiliar to our federal system."

Backed by a group of conservative activists, Canyon Creek launched a direct challenge to the law's "preclearance" provision, arguing that it should not be enforced in areas where it can be claimed that racial discrimination no longer exists.

Civil rights groups say Section 5 has proved to be an important tool to protect minority voters from local governments that could set unfair or unconstitutional barriers to the polls. If it is ruled unconstitutional, they warned the justices, the very power and effect of the entire Voting Rights Act would crumble.

The Bush administration had led the legal fight defending the law, but the case was argued in April by a Justice Department attorney named by President Obama.

During those oral arguments, several dozen members of the NAACP rallied outside the court, and members of Congress attended the 70-minute oral arguments, including the Senate Judiciary Committee chairman, Patrick Leahy, and longtime civil rights activist Rep. John Lewis.

Since 1982, only 17 jurisdictions have been able to "bail out," or become exempt from federal oversight, out of about 12,000 covered political jurisdictions.

"It is unlikely that Congress intended the provision to have such limited effect," Roberts said, in the face of statistics showing voter turnout and registration rates reaching parity between the races in most areas of the country.

Justice Clarence Thomas, the court's only African-American, supported Monday's decision but said he would have gone farther and declared Section 5 to be unconstitutional.

"The violence, intimidation, and subterfuge that led Congress to pass Section 5 and this court to uphold it it [in part] no longer remains."

While legal briefs on both sides mentioned the effect of the nation electing its first African-American president as justification both for and against Section's 5 validity, no mention of that point was made in court arguments.

The case is Northwest Austin Municipal Utility District Number One v. Holder (08-322).