Supreme Court narrows but preserves Voting Rights Act

The historic Voting Rights Act -- the 1965 law that ended a century of racial discrimination at the ballot box and gave blacks a political voice across the South -- survived a strong challenge at the Supreme Court on Monday as justices pulled back from a widely anticipated decision to strike down a key part of the law as outdated and unfair to today’s South.

Instead, the justices agreed to narrow the law’s impact by allowing municipalities with a clean record to seek an exemption.

Though the court sided with the Texas water district that brought the case, its 8-1 decision preserved the core of the Voting Rights Act, including its special scrutiny for any changes in election rules by Southern states.

The ruling also protected the Roberts court from charges of conservative “judicial activism” in its refusal to tamper with an act of Congress, a often sensitive procedure fraught with political risk.

Monday’s decision, considered among the most important of the term, came as a surprise and a relief to civil rights advocates.


“This is a Pyrrhic victory for those who were behind bringing this case,” said Jon Greenbaum, legal director for the Lawyers’ Committee for Civil Rights Under Law. “We are glad that . . . the Voting Rights Act remains intact to protect the rights of voters.”

Civil rights lawyers and liberal activists were prepared to denounce Chief Justice John G. Roberts Jr. and the court’s conservatives had they struck down one of the landmark laws of the civil rights era.

Three years ago, Congress by overwhelming majorities in the Senate and House extended the law for an additional 25 years. President George W. Bush signed the bill extending the law.

But in January, the court voted to hear a broad challenge. Civil rights advocates were astonished during the oral argument in April when the court’s most conservative justices derided the law and signaled they were inclined to throw it out.

Without question, Section 5 of the Voting Rights Act is an unusual provision. Its effect has been to keep the South under special scrutiny from Washington because of its history of racism.

The law requires most states in the South and more than 12,000 municipalities to “pre-clear” with the Justice Department any changes in their voting and election procedures. These can range from the location of polling places to the shape of electoral districts in the state legislatures.

Its original aim was to prevent county officials from adopting schemes such as shifting the hours and places for voter registration to keep blacks off the voter rolls.

It has had an enormous impact in its nearly 45-year history, opening the polls to millions of black voters.

“This law has an extremely important symbolic effect even today,” said Paul Hancock, who was a veteran Justice Department lawyer and defender of the Voting Rights Act. It forces states and counties to think twice before making changes that would have an unfair impact on black voters and candidates, he said.

The law was extended in the 1970s to several counties in Northern California, New York and elsewhere that had a high percentage of non-English-speaking residents.

More recently, however, Congress did not update the law to change its scope or account for new problems. Critics said states such as Ohio and Florida have had much-publicized voting problems, yet they are not covered by the law.

“Things have changed in the South,” said Roberts in announcing Monday’s decision. Blacks and whites now register to vote at the same level across the South, he said. And by some measures, the gap between whites and blacks is less in much of the South than elsewhere in the nation, he said. “These improvements are no doubt due in significant part to the Voting Rights Act itself and stand as a monument to its success,” he said. “Past success alone, however, is not adequate justification to retain the pre-clearance requirement.”

But having set the stage for knocking down the law, Roberts said the court had decided instead to set up a method that would allow municipalities to escape from it.

“This is not a great loss to the Voting Rights Act,” Hancock said. “It may even help preserve it by allowing some jurisdictions to bail out.”

Some voting experts said the court had put Congress on notice that it is ready to strike down the law unless it is revised.

In April, Justice Anthony M. Kennedy said he did not see how two states -- Georgia and Ohio -- could be treated under two differing legal rules. While Georgia was forced to live under the scrutiny of the Justice Department, Ohio was not covered by the law, he noted.

“This is like a stay or buying time,” said Ellen Katz, a voting rights expert at the University of Michigan. “Most of what they said today could be said in the next decision as the basis for striking down the law. It’s curious they stopped short today.”

The law had been challenged by officials from a water district near Austin, Texas, who said they should not have to ask for permission from Washington for switching a polling place from a house to a public school.

Roberts spoke for a unanimous court in saying the water district, along with 12,000 other political subdivisions, could escape the law by going to court and showing it had not violated any provision of the Voting Rights Act for a decade.

Justice Clarence Thomas, the court’s only Southerner and only African American, voted with the majority in favor of the water district but said in dissent that he would go further and strike down the entire provision as unconstitutional.

“The extensive pattern of discrimination that led the court to previously uphold [Section] 5 . . . no longer exists,” he wrote in his opinion, which was part concurrence, part dissent. “Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence.”

The other key part of the law forbids discrimination based on race, and Thomas said the Justice Department can use this provision to combat the “handful” of unfair schemes that arise today.

Atty. Gen. Eric H. Holder Jr. said the Justice Department would “continue to vigorously enforce the Voting Rights Act.”

“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,” he said. “But there is still more work to be done to fulfill the promise of full voting rights, free from discrimination, for all Americans.”