Will Supreme Court Be Able to Sidestep Deciding Fate of Voting Rights Act?

As the number of woman and minority elected officials increases and Barak Obama is elected president for a second term, the Supreme Court has agreed to reconsider the constitutionality of Section 5 of the Voting Rights Act of 1965. The law, first passed during the Civil Rights era, requires states and municipalities with a history of voter discrimination to obtain federal approval before changing their voting laws.

Many argue that Barak Obama’s reelection serves as proof that race is no longer a factor in voting. However, others maintain that President Obama may not have won had the Voting Rights Act not been available to overturn discriminatory voting laws requiring photo identification and limiting access to early voting.

The Supreme Court will have to confront both issues in Shelby County v. Holder. The lawsuit alleges that Congress exceeded its authority in 2006 when it reauthorized the preclearance requirements under Section 5. The lawsuit specifically asks the Court to strike down the law, arguing that any government entity under its purview “must either go hat in hand to Justice Department officialdom to seek approval, or embark on expensive litigation in a remote judicial venue.”

The Supreme Court was asked to consider the same question in 2009. However, through the doctrine of constitutional avoidance, the Court was able to sidestep the issue. In Northwest Austin Municipal Utility District v. Holder, Chief Justice John Roberts questioned the continued relevance of the Voting Rights Act, noting that it  “raises serious constitutional concerns.”

He further acknowledged that “some of the conditions that the Court relied upon in upholding this statutory scheme in South Carolina v. Katzenbach, 383 U. S. 301, and City of Rome v. United States, 446 U. S. 156, have unquestionably improved. Those improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success, but the Act imposes current burdens and must be justified by current needs. The Act also differentiates between the States in ways that may no longer be justified.”

Despite these harsh criticisms, the Supreme Court did not address the constitutionality of the law. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today,” Justice Roberts wrote.

Instead, the Court relied on the constitutional avoidance doctrine, which states that “the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.” The doctrine allowed the Court to resolve the dispute on much more narrow grounds, by ruling that the aggrieved utility district could “bail out” of the preclearance requirements.

This will not be an option in Shelby County v. Holder, and the justices will have to answer the question it skirted three years ago. The case will likely be heard early next year.