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Supreme Court Pulls a Trick Play and Upholds Section 5 of the Voting Rights Act

By Kevin Fayle | Last updated on
In a surprise move, the Supreme Court passed over a chance to rule on the constitutionality of Section 5 of the Voting Rights Act today, crafting relief based on an unanticipated interpretation of the statute instead.

Chief Justice Roberts' opinion was unexpected, to say the least, particularly given his brutal interrogation of section 5's proponents during oral arguments.  Many observers also didn't think that the case, Northwest Austin Municipal Utility District v. Holder gave the Supreme Court much leeway to avoid the constitutional issue.

The case revolved around the Act's provision, laid out in section 5, that requires government bodies in areas that were historically involved in the disenfranchisement of minority voters to get "preclearance" from the Department of Justice before modifying their election procedures.  The plaintiff in the case, a small utility district in Texas that didn't exist until 1980 and had never been accused of discrimination, wanted a "bailout" from section 5, or, if exemption wasn't possible, a declaration that the section violated the Constitution.
Supreme Court watchers noted that the wording of the statute didn't seem to allow for an exemption, and the general consensus was that the Court would strike down section 5, most likely by a 5-4 vote.

Instead, Chief Justice Roberts, writing for an 8-justice majority, determined that there was no need to decide the constitutional issue because the statute itself could provide the relief the utility district had requested.  Roberts employed the constitutional avoidance doctrine, which instructs judges to avoid ruling on a constitutional issue when there is a more narrow solution available.

The narrow solution Roberts crafted involved a determination that a restrictive definition of "political subdivision" did not apply to the preclearance portion of the Act.  Because of this, Roberts wrote, the narrow definition should not foreclose on the availability of a bailout for the district.

The constitutional avoidance doctrine is a pillar of the judicial system, but its application here involved a few artful judicial maneuvers on the part of the Chief Justice.  So what happened?  Why did Roberts, who had all but expressed his open disdain for the arguments of section 5's supporters, suddenly choose a path of judicial restraint?

Rick Hasen of the Election Law Blog has an excellent breakdown of the possible events and/or considerations leading up to Roberts' opinion.  Among them, Hasen theorizes that Justice Souter may have lobbied behind the scenes for this outcome.  He raised the possibility of an invocation of the constitutional avoidance doctrine at oral argument, even though observers at the time thought that a resolution based on statutory interpretation was unlikely.

Another possibility floated by Hasen is that Justice Kennedy, the Court's resident swing vote, came down on in support of section 5's continued viability.  Knowing this was a highly sensitive issue, Roberts may have wanted to secure his desired outcome while at the same time avoiding a split in the Court over a controversial case. 

As it is, only Justice Thomas did not join the opinion, arguing that Roberts should not have employed constitutional avoidance, and should have ruled that section 5 was unconstitutional.

Thomas may eventually get his wish.  Because the Court didn't make a definitive ruling on the constitutional issue, it's a safe bet that the Voting Rights Act will end up before the Court again in the near future.

See Also:
Quelle Surprise! The Unexpected Ruling that Saves Section 5 (WSJ Law Blog)
Section 5 survives (SCOTUSblog)
The Supreme Court Punts on Section 5 (Balkanization)
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