Civil and Human Rights

Supporters Brace for Defeat on Voting Act

Sometime in the next few weeks, the Supreme Court is expected to issue its ruling in Northwest Austin Municipal Utility District Number One v. Holder, a frontal challenge to the constitutionality of the preclearance provision of the Voting Rights Act. Under that section of the law, changes in election procedures in covered jurisdictions that might affect minority voting power must be submitted to the Justice Department for approval.

The Voting Rights Act got roughed up at oral argument. So supporters of the law are bracing for defeat, and earlier this week the progressive Constitutional Accountability Center held a telephone panel discussion to discuss how the case might turn out.

The center also released a new report on the history of Section 5 of the 14th Amendment — a history that it claims supports broad congressional power to enforce voting rights.

The panelists voiced strong pessimism about the outcome of the pending case, and previewed how they’ll react if the decision is as bad as they fear it will be. If the contested provision of the act is struck down, the center’s president, Douglas Kendall, said, it will be a ‘starkly activist decision’ because the court will be trumping clear congressional authority.

Former Judge Patricia Wald of the D.C. Circuit U.S. Court of Appeals said the law is ‘an absolutely fundamental aspect of voter protection’ that is still necessary even after an African-American has been elected president.

David Gans, author of the center’s report, said a ruling against the law ‘should frame this summer’s confirmation hearing’ for Supreme Court nominee Sonia Sotomayor.

Yale Law School professor Akhil Amar said the Voting Rights Act ‘has the blood of martyrs on it,’ and is ‘one of the most important statutes in world history.’ Before the arguments, Amar said he thought the court ‘could not be so obtuse’ as to strike the law down. But when he heard the audio of the arguments, he said, ‘My heart sank.’

The dismissive tone of several justices about the law was unnerving, Amar said. ‘It really did shake me.’

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