This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.
“The smart money is on the court striking down [Section 5 of the Voting Rights Act] as an improper exercise of congressional power,” Rick Hasen has warned in his introduction to this forum. That bet is a poor one.
The “experts” may well be proven wrong ‑ as they were in 2009 when the Supreme Court found no reason to rush into a constitutional judgment on the constitutionality of pre-clearance. “Our usual practice,” Chief Justice John Roberts said then, “is to avoid the unnecessary resolution of constitutional questions.” And that is just what the court did.
Today, however, those worried about the future of the Voting Rights Act nervously point to a remark by the chief justice in a 2006 congressional redistricting case. “It is a sordid business,” Roberts said, “this divvying us up by race.”
The remark suggested race-driven maps would not survive another review of Section 5’s constitutionality, and yet the enforcement of the pre-clearance provision has long involved race-conscious districting. To forbid “divvying up” is to insist that the Justice Department and the courts craft very different remedies for electoral discrimination than the familiar ones ‑ though a commitment to those race-based districting plans has long been a civil rights litmus test.