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High Court Rules In Voting Rights Case

MELISSA BLOCK, host:

This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.

ROBERT SIEGEL, host:

And I'm Robert Siegel.

We begin this hour with two significant rulings from the U.S. Supreme Court. First, today the court released one of the year's most anticipated decisions -it dealt with the Voting Rights Act. Despite predictions that the court was going to invalidate part of that law, it left the Voting Rights Act intact for now, but the court did allow more jurisdictions to bail out from a key provision in the law. The vote was 8 to 1. The lone dissenter was the court's only African-American justice, Clarence Thomas.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: The Voting Rights Act, first enacted in 1965 and reauthorized three times by Congress since then, is generally considered the most effective piece of civil rights legislation in American history. Its key provision, known as Section 5, requires jurisdictions with a history of discrimination in voting to get approval from the Justice Department before changing voting procedures. So, for example, if an Alabama town wants to change an elected board to an appointed board, it has to get permission first from the Justice Department. Getting pre-clearance is generally easy and cheap with the Justice Department objecting to fewer than one percent of the requests.

The provision covers all of nine states, mainly in the deep South, plus parts of others. Although the law was reauthorized by a near-unanimous vote in Congress, some conservatives have chafed about pre-clearance requirements that apply to some, but not all states. Among those critics was a young Justice Department lawyer named John Roberts in the 1980s, but today Roberts, now chief justice of the United States, wrote the Supreme Court decision leaving the law intact for now and instead interpreting the statute to allow more jurisdictions with a good record on voting rights to bail out of its coverage after 10 years.

The decision came in the case of a tiny Texas utility district that had a spotless record on voting rights, but did not qualify to bail out because its voters were registered by the county which did not want a bailout. Today the Supreme Court, by an 8 to 1 vote said that any political subdivision, whether or not it registers voters, is eligible to bail out if it meets the criteria set out in the law. But the decision also contained warning language about the law's constitutionality.

Chief Justice Roberts, while praising the law's accomplishments with one hand, seemed with the other hand to suggest that the law may no longer be justified. Things have changed in the South, he said. Voter turnout among blacks and whites approaches parity, blatant discrimination is rare and minority candidates hold office at unprecedented levels.

Still, Roberts said, under the 15th Amendment of the Constitution, it is Congress, not the court, that's supposed to determine in the first instance what legislation is needed to enforce the right to vote for minorities. And, he added, it is long established that if the court can avoid a ruling on constitutional grounds, it should do that.

In this case, he said, the constitutional question need not be resolved, because Congress clearly intended to expand the bailout provision in order to make the law more flexible, but the lower courts had not permitted that expansion. Indeed, only 17 jurisdictions have petitioned for and won bailout until now. All 17 of those bailouts were handled by Gerry Hebert, a former Justice Department civil rights lawyer.

Mr. GERRY HEBERT (Former Justice Department Civil Rights Lawyer): Both lawyers for local governments and local governments themselves were not even aware of the bailout provisions. Those that were aware of it thought that it was really too expensive or too high a hurdle to get over. It turns out, of course, none of those things are true.

TOTENBERG: Hebert believes that there may be hundreds, if not thousands, of localities that could qualify for bailout under today's ruling. Since nobody knows about the justices' deliberations, nobody can know for sure how the court reached such consensus today. At oral argument there seemed to be five votes to strike the law down - the court's four most conservative members, plus Justice Anthony Kennedy. It didn't turn out that way, though, as John Payton of the NAACP Legal Defense Fund observes, the question of a law's constitutionality remains unresolved.

Mr. JOHN PAYTON (NAACP Legal Defense Fund): Obviously, it can return to the court, but I think it is the case that today there were not five justices who thought that Section 5 was unconstitutional.

TOTENBERG: Columbia University law professor Nathan Persily observes, however, that the bullet that the civil rights community dodged today is still out there.

Professor NATHAN PERSILY (Law, Columbia University): In some ways the civil rights community is breathing a sigh of relief because their worst case scenario was not realized. However, what this probably means is that the main question over the constitutionality of the Voting Rights Act may come to the court in the heat of the 2011 redistricting cycle, which would really throw the state of the law into disarray at a time when you need it to be most clear.

TOTENBERG: Michael Carvin, who filed a friend-of-the-court brief in the case on the behalf of several noted conservatives, smells potential victory in today's ruling.

Mr. MICHAEL CARVIN (Lawyer): I think the court's opinion puts a Sword of Damocles hanging over the head of Section 5, because it provides a blueprint for lower courts and litigants to follow and explaining why Section 5 is unconstitutional.

TOTENBERG: Is that - you really - from a political point of view, do you really think that trying to axe the Voting Rights Act is something that leading politicians want to do?

Mr. CARVIN: No, I don't. I mean, I think there's two political constraints on bringing this. I think number one is that you'll be demonized by minority civil rights group supporters, and the other constraint is that Republicans like this Section 5 at least as much as Democrats because it's aided them politically in a lot of situations.

TOTENBERG: In dissent today, Justice Clarence Thomas said that the violence, intimidation and subterfuge that once justified the Voting Rights Act no longer exist and that the law, thus, is no longer constitutional.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.