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Rosen On The Voting Rights Act

The Supreme Court just released its opinion in Northwest Austin Utility District v. Holder, a case that raised questions about the constitutionality of enforcement mechanisms in the Voting Rights Act. As Jeff Rosen wrote last May, if the Court's conservative majority decided to overturn those provisions, it might have presented President Obama with a political opportunity:

If the Supreme Court strikes down part of the Voting Rights Act ... the decisions might be questionable as constitutional matters, since the framers of the Civil War amendments to the Constitution intended to give Congress broad latitude to define discrimination as it thinks best. But Supreme Court defeats would hardly be the worst thing for liberals as policy matters. They would force Obama to articulate a moderate, middle-of-the-road position on race that is rooted in empirical evidence rather than ideology.

This is a position that Obama has been moving toward ever since he taught voting-rights and race law at the University of Chicago in the late '90s. As a law professor, Obama impressed his students with his non-ideological approach to questions involving voting rights and affirmative action. "He was very even-handed and kept his cards close to his chest," recalls David Franklin, now a law professor at DePaul who studied voting rights with Obama in 1997. "He was probably more intellectually engaged by election-law issues than by race and racial issues as such." Franklin says that Obama seemed more interested in empirical evidence about actual voting patterns than in liberal shibboleths about the need for majority-black voting districts or conservative shibboleths about the need for color blindness.

If the Supreme Court rules that Congress needs actual evidence of racially polarized voting before supervising state elections, Obama would have the stature to insist that federal oversight is no longer necessary in some parts of the South but might be necessary elsewhere. Democrats might benefit if the Supreme Court reduced the pressure on Southern states to create majority-minority districts. (Some scholars estimate that the Democrats lost the House in 1994 because of racial redistricting.) At one time, it was believed that blacks would never get elected without safe districts; now the concern runs in the other direction--namely, that drawing safe minority districts that aren't compelled by geography may make it harder for politically moderate black candidates to run and win. A Supreme Court defeat could force Obama to challenge the civil rights establishment by making publicly a case that white Democrats increasingly embrace privately: Now that black officials are winning elections at every level, the design of electoral districts should be left to political horse-trading and negotiation, rather than being micromanaged by Washington.

None of that will be necessary, however, since the Supreme Court ended up ruling narrowly in order to defuse the issue. As Chief Justice John Roberts explains in his opinion, the relevance of provisions in the Voting Rights Act "is a difficult constitutional question we do not answer today."

Update: Doop. Looks like the initial headlines were wrong and Obama will get his chance after all.

--Barron YoungSmith