The Supreme Court today noted probable jurisdiction in a Texas case that challenges the constitutionality of Section 5 of the Voting Rights Act. Noting probable jurisdiction is like granting certiorari; the difference is that, in certain VRA cases, the losing party has the right of filing an appeal rather than a cert petition. Section 5 is the part of the VRA that requires certain jurisdictions (mostly, but not only, in the South) to get permission from the federal government whenever they make any changes in practices or procedures that involve voting — from moving the polling place across the street, to redrawing district lines, to whatever — to make sure that the proposed change has neither the purpose nor the effect of abridging the right to vote on account of race.
This is a big deal. The media will be all over it, and indeed Linda Greenhouse wrote a column about it in the New York Times today. I think she was trying to scare Chief Justice Roberts away from the case, but apparently it didn’t work.
NRO readers may recall that, when Section 5 was up for reauthorization in 2006, I testified that it was unconstitutional and actually encouraged racially discriminatory practices, especially gerrymandering; astonishingly, Congress ignored me. But, while it is encouraging that the Court has voted to grant full review in the case, it will not be easy to get five justices to vote the right way. Striking down any part of the VRA is obviously serious business, and Section 5 is a prominent provision in it.
Legally, the key is to persuade five justices that there is no longer any empirical basis for singling out certain jurisdictions for the VRA’s extraordinarily intrusive review, and for using the VRA’s purpose or effect standard, which goes beyond what the 15th Amendment prohibits. But equally important, and probably more difficult, is reassuring justices like Anthony Kennedy that the Court will not suffer institutionally if it does the right thing.
The Obama administration will of course defend Section 5’s constitutionality, as did the Bush administration in the lower court. But the fact that we have an Obama administration — that is, an administration headed by an African American — actually is a good thing: it helps make the case that the extraconstitutional Section 5 mechanism is no longer “congruent and proportional” (the Court’s standard here) for ensuring compliance with the 15th Amendment and its ban on racial discrimination in voting.