Co-authored with Ken Blackwell
The Supreme Court’s decision today in the racial preferences case Ricci v. DeStefano will be a major story. Less noticed but equally important, the Supreme Court’s decision on voting rights last week heralds a sea change in racial politics in this country. Taken with the Ricci decision, it’s clear that a new era is dawning on race in America.
The Supreme Court upheld the constitutionality of part of the Voting Rights Act on June 22. But in its opinion, the Court signaled that a massive change in voting rights was coming, and Justice Thomas took his usual role as a herald in declaring what could soon happen regarding this fundamental right.
The Court decided NAMUDNO v. Holder on June 22, where a Texas utility district argued that it should be able to escape federal supervision under the Voting Rights Act of 1965 (VRA). Most Southern states, and any political subdivision of those states, are required by Section Five of the VRA to get preclearance from the Department of Justice (DOJ) before making any changes to its voting laws, no matter how minor or insignificant those changes might be. Section Five was created during the 1960s to fight militant racism and organized voter intimidation. The preclearance process is invasive and tedious, and there is far too much opportunity for a politically-charged DOJ (such as the Obama-Holder DOJ) to use this power to shape voting laws that benefit a particular political party.
The Northwest Austin Municipal Utility District Number One (NAMUDNO), argued that its lack of discrimination history should allow it to use the “bailout” provision of the Voting Rights Act to no longer be subject to these backbreaking regulations and oversight. It also argued that, if it doesn’t qualify to “bail out,” the Supreme Court should hold that Section Five is a product of a bygone era that has no place in a country where a black man can now be elected president of the United States.
The Supreme Court unanimously held (9-0) that NAMUDNO qualifies for the bailout provision, rejecting the Obama-Holder DOJ’s position to the contrary, and so could now pursue that process to get out from under Section Five. Having done that, the Court also held 8-1 that it was unnecessary to decide whether Section Five is unconstitutional.