Given the whole Black President-Elect thing, it’s an interesting time for the SCOTUS to decide to revist the Voting Rights Act of 1965, you know, the one designed to keep people (read: Southerners) from suppressing the black vote. But in the rather mundane sounding Northwest Austin Municipal Utility District Number One v. Mukasey, the men (and woman) in black robes may well do just that.
The fast version is that notoriously historically racist states (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia) plus a number of counties and municipalities scattered throughout the country must get the Department of Justice to pre-approve (“get preclearance”) any change to the voting scheme they would like to make. The rationale here is that one election designed to disenfranchise people is one too many and historically racist areas ought not to be allowed that chance.
Enter good old Northwest Austin Municipal Utility District Number One, which has had a clean record on race issues. Given that record, they feel that they should be allowed an exception to the Voting Rights Act. There is in fact a provision in the law to allow government units that clean up to remove the preclearance requirement. The problem is that it doesn’t apply to things like utility districts, which is what the last court to hear the case said.
At least one justice on the SCOTUS disagrees, hence the case is up for broader consideration. In my mind there are about four possible legal outcomes, barring any unforseen technicality which results in the case being thrown out. Here are what they are and how I think the different justices will fall.
#1 Uphold the law as it stands
This is the “Defer to Congress” outcome. Congress wrote the law specifically leaving things like utility districts without the preclearance exception. This was intentional and while it may be bizarre and arbitrary there is nothing unconstitutional about it. Out of the current sitting justices, I expect Ginsburg and probably Stevens to back this approach, though I could see either of them compromising to option #2 if it meant a unanimous or near-unanimous opinion or it allows a united opposition to options #3 or #4.
#2 Widen the clean-record exemption to include things like utility districts
This is what I’ll call the “Minimalist” outcome. Right the obvious injustice, leave everything else stand. Ostensibly this should have Chief Justice Roberts’ name written all over it, but given his terrible record of bringing the court to consensus he may well opt for #3 out of frustration. Expect Kennedy and Souter to be pushing hard for this option.
#3 Apply a tougher standard to discrimination voting restrictions
This is the “We Ain’t Racist No More” option. Though Congress keeps on extending the preclearance requirement — most recently in 2006 — some justices may be persuaded that the whole preclearance for the whole south thing is getting a bit ridiculous and the requirement ought to be much more carefully curtailed. This is an option that I don’t think any justice will start favoring this option, except perhaps Alito, but if Kennedy and Roberts are feeling mean, may be where the court ends up.
#4 Strike the whole law down
This the “Hate the Darkies” outcome. According to this option, racism is sufficiently past tense that the entire preclearance requirement is now disproportionately burdensome and the entire requirement should go away. The fact that Congress came to the opposite conclusion in 2006 is irrelevant. Or perhaps the law violates a state’s right to abuse its voters or something like that. Expect Thomas, self-hating black man that he appears to be, to strongly advocate for this position. Scalia will also likely start here too, but I could see him moving to #3 or even #2 depending on his mood.
What do you think? Have I utterly misrepresented your favorite justice? Or are you just pissed that I called you a racist for favoring #4? Do let me know and feel free to be angry.