Section 5 Allowed to Survive

In the latest ruling from the Supreme Court, a controversial case involving the Voting Rights Act has yielded an unorthodox ruling. SCOTUS Blog has the details, discussed below.

In the case of Northwest Austin Municipal Utility District v. Holder, it was widely believed that there was no middle ground. Many believed that Justice Anthony Kennedy’s notorious swing vote on the court would ultimately determine the fate of Section 5’s constitutionality. That provision in the Voting Rights Act mandates that specific jurisdictions with a history of discrimination receive clearance from the Justice Department before being allowed to make any alterations in the voting process.

It seems that, possibly fearing Justice Kennedy voting with the liberal faction, Justice Roberts put together a coalition of seven other justices to find that elusive middle ground – in the process invoking the doctrine of constitutional avoidance and putting off for another day the unsettled question about Section 5’s constitutionality.

The Court ruled that all local jurisdictions should be allowed exemption from Justice Department pre-clearance if they can demonstrate a 10 year history of no racial discrimination. Section 5 went untouched.

Dissenting was Justice Clarence Thomas, who was not content with Roberts’ compromise.

“Because the Court’s statutory decision does not provide [NAMUDNO] with full relief, I conclude that it is inappropriate to apply the constitutional avoidance doctrine,”

Thomas stated that striking down Section 5 would have been the appropriate ruling.

I certainly agree with Thomas – I think that Section 5 is no longer justified. It has lost its efficacy from a practical policy standpoint, and was always unconstitutional from a theoretical standpoint. However, if I had to choose between Justice Roberts’ brave politicking to reach a  compromise, or the liberal faction the court resolving the constitutional question in favor of Section 5, I am apt to settle for the draw.


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