Tuesday, June 23, 2009

Is Section 5 in Trouble?

Heather K. Gerken

Yesterday, every member of the Supreme Court told Congress that there were serious doubts about the constitutionality of Section 5 of the Voting Rights Act. Bruce Ackerman is confident that the Justices blinked and that they will affirm Section 5's constitutionality when the inevitable next case reaches the Court.

As I explain on Rick Hasen's blog, I have my doubts. The swing vote is Justice Kennedy, and I'm not sure yesterday's decision tells us anything except that he wasn't ready to invalidate Section 5 this Term. Maybe, as Bruce suggests, he will blink again when the case next comes around.

But if we are reading the tea leaves, then Section 5 supporters should be worried about the fact that the Court's four liberals joined Chief Justice Roberts' opinion casting doubts on every major justification for upholding Section 5. As I explain in my post, it is hard to figure out any reason for them to do so other than this: they thought that sending a crystal clear, united message to Congress was Section 5's best hope. That is, the four Justices on the Court may have been convinced that Section 5 will fall when the case returns, and they were hoping that members of Congress will take the hint.

If Congress decides to take the hint, it should take a look at a series of guest blogs that will appear on the American Prospect during the next day as well as several white papers on the Tobin Project's website, which I link here. All of them offer strategies for Congress to fix the problem before the Court fixes it for them.

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