Court Dodges With Voting Rights Decision

June 22, 2009— -- Dodging a potentially explosive decision, the Supreme Court today declined to rule on whether key elements of the landmark Voting Rights Act were constitutional.

Instead, in an opinion written by Chief Justice John Roberts, the court made it easier for some local jurisdictions to bail out of Section 5 of the law, which mandates Justice Department approval for any changes in voting procedures in the nine states and portions of another seven covered by the law.

The court, in an 8-1 vote, left the constitutional question for another day, writing, "The constitutional question has attracted ardent briefs from dozens of interested parties, but the importance of the question does not justify our rushing to decide it. Quite the contrary: Our usual practice is to avoid the unnecessary resolution of constitutional questions."

Today's ruling is a victory for residents of a small Texas municipal district had argued that the Voting Rights Act -- created in 1965 to protect minorities in jurisdictions with a history of racial discrimination -- is archaic and should be abolished.

Some residents of the community of 3,500 were infuriated because they had to spend two months and hundreds of dollars in legal fees just to move a polling place from a garage to a school. They said they supported the broader goals of the Voting Rights Act but believed Section 5 should be scrubbed.

"The America that has just elected Barack Obama is not the same America that existed when Section 5 was put into place," Gregory S. Coleman, an attorney for the Northwest Austin Municipal Utility District, told ABC News in a recent interview.

Coleman contended that the district is suing the government because Congress was wrong to reauthorize key sections of the Voting Rights Act in 2006.

"At some point you have to say we've come far enough. Why do we and the other affected jurisdictions have to have the federal government looking over our shoulder," Coleman said.

In his opinion Roberts acknowledged that the "historical accomplishments of the Voting Rights Act are undeniable" but that "Members of this Court" have expressed "serious misgivings about the constitutionality of section 5."

The Voting Rights Act's 'Badge of Shame?'

Coleman calls Section 5 an "ancient formula" that has become a "badge of shame," and he argues that no election-related lawsuit has ever been filed against the district.

The case had civil rights lawyers worried. In briefs filed with the court, the NAACP Legal Defense Fund had argued, "No statute in our history embodies America's commitment to democracy more clearly than the Voting Rights Act."

"We have Section 5 because of a history of jurisdictions doing everything conceivable to adversely affect the ability of African-Americans initially, and other minorities later, to exercise their right to vote," said John Payton, president of the Legal Defense Fund.

Payton dismissed any notion that enough progress has been made to make Section 5 unnecessary.

"Since the last authorization there have been hundreds and hundreds, hundreds of examples of jurisdictions trying to change practices and procedures to vote that would have adversely affected the minorities' right to vote," he told ABC News earlier this year. "The fact that Section 5 is still working means it's still catching things. If it is still catching things, we need it."

The Obama administration agreed. In court papers, it argued that Congress was right to pass the latest reauthorization of Section 5 in 2007, saying that the legislation "continued this nation's sacred commitment to eradicating the effects of its darkest days."

Noting the history of discrimination across the country, Justice Department lawyer Edwin S. Kneedler wrote, "While progress has been made over the last four decades, Congress in 2006 acknowledged the still painful reality that this blight has not yet been eradicated."

The case was seen as potentially the most important voting rights case to come before Chief Justice John Roberts' court.

At his confirmation hearings, Roberts was confronted with memos he had written as a young Reagan administration lawyer in support of narrowing the Voting Rights Act. During the hearings, he said, "I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships. I was not shaping administration policy."

Roberts and Race-Based Remedies

But as chief justice, Roberts has been skeptical of race-based remedies. In a Texas redistricting case he wrote, "It is a sordid business, this divvying us up by race."

Richard L. Hasen, an election law expert at Loyola Law School, warned Congress in 2006 that the court could eventually strike down provisions of the law unless Congress updated it to take into consideration the law's success. He warned that some justices might not see enough recent evidence of intentional discrimination by states to justify the Justice Department's preclearance role.

"No one knows what would happen if Section 5 suddenly disappeared. It should stand, but it could use some updating," Hasen said.

Hasen expressed concerned that the court could find that the problems that do exist with minorities at the polls exist across the nation, not only in the jurisdictions covered by Section 5.

At the time, Hasen proposed a number of steps that would make it easier for some jurisdictions to no longer be subject to these special rules if they could prove they had taken enough steps to prevent racial discrimination in voting in their areas.

Congress declined to follow the recommendations.

"If Congress had followed these steps it would have been more likely that the court would reject arguments against the constitutionality, because the law would be more tailored to modern circumstances," said Hasen.