Why VRA preclearance may evade further review

Right after Monday’s decision sidestepping the constitutionality of the Voting Rights Act’s preclearance requirement, the conventional wisdom appeared to be that SCOTUS was poised to find preclearance unconstitutional the next time the issue came before it. However, the conventional wisdom has fermented and evolved as the week wore on, and now some legal scholars are suggesting that the Court may have deliberately written Monday’s decision in such a way that the constitionality of preclearance will not be reviewable by the Court in any future cases.

By insisting that covered jurisdictions attempt to use the bailout provision first before they can challenge constitutionality, the Court essentially traps states and municipalities that are tired of operating under the burden of preclearance. Either they meet the requirements for bailout and will be exempted from preclearance upon request, or there is still sufficient evidence of voting discrimination that they do not meet the bailout requirements. If a state or municipality can’t meet the bailout requirements, then it is not a good plaintiff to challenge the constitutionality of preclearance, because the goverment can simply argue that discrimination has still happened there recently, so obviously preclearance is a necessary and appropriate remedy to that discrimination.

Sure, Georgia would love to challenge preclearance, but if the Department of Justice has issued valid objections to voting practices here in the last decade, then obviously preclearance is still needed and justified here, right? It would be very tough for SCOTUS to find preclearance unconstitutional when a constitutional challenge is brought by a state still experiencing voting discrmination in the new millenium. If anything, that sort of black mark evidence could actually push fence-sitting justices over to the side of finding preclearance constitutional.

This and many many other fascinating points of view from constitutional and election law scholars can be read here. I found particularly interesting the suggestion that this strange compromise decision should be considered Justice Souter’s legacy, since he asked the question at oral argument that allowed the Court to opt for alternative relief. Always sneakily sticking it to the conservatives even to the very end, that one…