Yet Another Bailout

Posted By Alan Greenblatt | June 22, 2009

The Supreme Court released its highly-anticipated decision in a voting rights case today. But the decision opens the door to further questions.

It its 8-1 decision, the Court ruled that a utility district can "bailout" of the Voting Rights Act's preapproval requirements when drawing new political lines. Overturning a lower court, it made clear that the legislation should allow for such bailouts, even by entities that don't register voters.

That narrow question aside, the Court sidestepped the "serious constitutional questions" that Chief Justice Roberts said the preapproval clearance process raises. It sounds like the Court's conservative majority is inviting a better test case to use to rule on the bigger questions. (The one no vote came from Clarence Thomas, who wanted the Court to rule on just those questions.)

One effect of this decision is to turn the law in this area into something that will need to be decided on a case by case basis. Focusing on the bailout provisions allows local determinations about whether racial animus and bias is still a problem for the community, suggests Bruce Cain, a UC Berkeley political scientist and an expert on redistricting.

"People who were saying that Barack Obama's election proved that Section 5 was not necessary misunderstood both the election and Section 5," Cain says. "A number of states -- Oklahoma, West Virginia, etc. -- swung away from the Dems in 2008 even more than in 2004.

"The consensus in poli sci is that racism cost the Dems 3 to 5 points and that the premise of
the Voting Rights Act is that there is contextualized racism -- racism in some places and
not others, not blanket racism."

In other words, like many another Supreme Court decision, this one means more work for lots of lawyers.

Alan Greenblatt

Alan Greenblatt is a GOVERNING correspondent.

E-mail: mailbox@governing.com
Twitter: @governing

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