Will the Supreme Court's Conservatives Undermine the Voting Rights Act?

By Rick Hasen, Election Law Blog. Posted May 16, 2008.

The Supreme Court this term has already decided a significant case on voter identification, as well as two somewhat less significant decisions on party primaries and judicial elections. It also has a campaign finance case pending, surrounding the "Millionaire's Amendment" to the McCain-Feingold law. But there's another election law case pending, Riley v. Kennedy, that has gotten very little attention but could turn out to be among the most important cases of the year. (The extent of coverage appears limited to this AP report, this analysis and oral argument recap from Scotuswiki, and this pre-argument post on Concurring Opinions by Erica Hashimoto. The oral argument transcript is here.)

The case comes under section 5 of the Voting Rights Act, and the question presented is "Whether states subject to Voting Rights Act pre-clearance requirements must receive Justice Department approval before implementing decisions of its highest court striking down previously pre-cleared state laws." The issue is rather arcane and the oral argument is hard to follow. But I was struck by this statement in the AP story (not the version linked above, but one I could only find on Westlaw) from Pam Karlan, who argued the case for the appellee:

After the hearing, Pamela Karlan, an attorney for the Democrats, said many of the justices seemed to have fundamental questions about the Voting Rights Act.

"We have a court that is very skeptical of the act," Karlan said.

It got me wondering what prompted Pam's comments, and it seems to be that Chief Justice Roberts advanced at argument a novel and potentially game-changing interpretation of section 5 requirements. As that section is currently understood, any time a covered jurisdiction intends to make a change in a voting practice or procedure, it must obtain preclearance from the Department of Justice (or a three-judge-court) before doing so. But Chief Justice Roberts seems to take the view, despite what he characterized as "dicta" from other Supreme Court decisions and acquiescence of Congress in this longstanding interpretation, that the only changes subject to preclearance are changes from the rules that were in effect in November 1964, when the Voting Rights Act was first adopted. Here are some snippets from the transcript:

CHIEF JUSTICE ROBERTS: Why did Alabama have to preclear anything? On November 1st, 1964, this was an appointed position. This is not a change from what was, quote, "in force or effect" on November 1st, 1964.

MS. KARLAN: Well, for one thing, this Court would have to overrule its decisions --

CHIEF JUSTICE ROBERTS: Oh, no, no. Those decisions are all dicta ...

MS. KARLAN: ... Now, the other thing is I will say that the Department of Justice regulations on this, which are quite clear, have been in effect since 1987. And in the 2006 -- in the 2006 re-enactment of the Voting Rights Act, if you look at the House report, they talk about Young against Fordice there. And they say "Mississippi's attempt to revive and to resuscitate" and those are the House's words, "to revive or resuscitate" -- the --

CHIEF JUSTICE ROBERTS: I think you're quite right on the DOJ regulations and the House report, but I just don't see how that squares with the statutory language.

MS. KARLAN: Well, Your Honor, if I could just make an observation about section 5 more generally in Allen, and I'll start here. In Allen, itself, this Court recognized that the text of section 5 doesn't provide for private rights of action, and yet it found them.

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Rick Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles.

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