On Monday, the Supreme Court issued its decision in the much anticipated case, Northwest Austin Municipal Utility District No. 1 v. Holder. The case was widely seen as a verdict on the future of a key provision, Section 5, of the Voting Rights Act of 1965. The case involved the pre-clearance provision of the Act. Named states, cities and counties must seek clearance from the Justice Department before making any substantive changes to their voting procedures or jurisdictions. Most had thought, many had hoped, that the justices would throw out that provision maybe even invalidate the whole Act. Unfortunately, they gave the plaintiff what they wanted but left everything else intact.
The Supreme Court will often not decide a matter that it has not been asked to decide but rather settle the narrow issues, if possible. That is what it did here. They said Northwest Utility could opt out but said no more than that. It is clear that there were at least three possibly four votes to throw out Section 5: Roberts, Alito, Thomas, and Scalia. So why not decide the broader issue? My guess is that they didn't have Justice Kennedy on board and they preferred a small win as opposed to a large defeat.
Chief Justice Roberts made it clear, once again, that the country has changed dramatically in the last 40 years and he is seeing no real need for these types of measures.
As all politics is local, I will bring this back to NYC. Many of you not from NY would be shocked to learn that three of the five counties that make up New York City (Manhattan, Brooklyn & The Bronx) are covered by the pre-clearance section. People tend to think these statutes apply to the deep south only. But the named entities are spread throughout the country. Recently, the Mayor and City Council overturned our term limits law here. Two separate voter referendum had enacted and then confirmed, by substantial majorities, the voters determination to impose term limits on our local elected officials. Those referendum made no provision whatever for an elected body to overturn the voter's decision.
And yet, our term limited Mayor and City Council by a simple legislative vote overturned term limits. I had assumed that when this went to the division of the Justice Department that handles Section 5, it would deny approval for the change. But no, it gave its blessing. Millions of voters, including many minority voters, voted for term limits without any 'out' for the incumbent politicians. True, a federal judge rejected a challenge to the Mayor's self-serving move. But I felt sure that if this provision was supposed to have some meaning it was that self-interested localities could not up-end the will of the electorate. And the minority electorate in particular. But no.
This was the most blatant act of voter disenfranchisement in the history of our city. And the Justice Department is fine with it. I can tell you that Justice's acquiescence surely doomed the chances of a black man, Bill Thompson, from running an effective race against the incumbent, Michael Bloomberg. This landmark piece of civil rights legislation has been used to deny a black man his opportunity to seek higher office. Could that have possibly been the intent? I don't think so. This is Chief Justice Roberts' point in practice. Evidence that laws can outlive their intended original purpose.
So here we are. Section 5 does not protect minority or majority voting rights from a small group of grubby, self-interested politicians. Then what is the point of it? And how can we rationalize its further applicability in a nation that has just elected a black President or a city that has elected a black Mayor, black Comptroller, and various Hispanic Boro Presidents. Or a state that elected a black Lieutenant Governor who is now our sitting Governor.
It seems that when it comes to the rights of prisoners and defendants the Supreme Court is only too happy to make broad, precedent setting decisions denying them their rights and vastly expanding those of the police. But when it comes to the rights of average voters in a possibly courageous decision, timidity seemed to be the watchword of the day.
Russell Harding
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