Within 24 hours of the U.S. Supreme Court's June 22 ruling rescuing the Voting Rights Act from constitutional oblivion, the decision produced a potential client for J. Gerald Hebert.
Hebert got a call from a North Carolina town that, before the ruling, was not eligible to get out from under the federal supervision of its election procedures required under the act.
But now that the Supreme Court had loosened the definition of eligibility in its 8-1 decision in Northwest Austin Municipal Utility District Number One v. Holder, Hebert said the town -- and possibly many more jurisdictions like it -- is interested in obtaining what is called a "bailout" from the statute so it can take back control of its voting laws.
Hebert, a solo practitioner in Alexandria, Va., is the only lawyer who has succeeded in obtaining bailouts under the Voting Rights Act since 1982 -- a fact mentioned in the decision last week. But Hebert, formerly an official of the Justice Department's voting section in the Civil Rights Division, acknowledges that his successes, until last week, have numbered only 17 -- out of 12,000 covered jurisdictions. The number of bailouts is sure to climb in the wake of the decision.
"The landscape is changed," said Hebert, who also is executive director of the nonprofit Campaign Legal Center. "If bailout becomes easier, it would change the dynamics if the [constitutional] issue goes back up to the Court."
By widening the escape hatch for localities in its extraordinary ruling, the Supreme Court may have launched a town-by-town movement that may release localities that have chafed for years under the law's strict rules; every time a covered jurisdiction wanted to move a polling place from one school to another, it needed Justice Department approval. Now, if they can show they've been adhering to the law for 10 years, they're home free.
But the decision also gave the Court itself an escape route to avoid confronting the politically divisive choice of striking down Section 5 of the voting law -- the preclearance requirement that many localities dislike. If local jurisdictions have a practical way to avoid the burdens of the law, the majority reasoned, the Court could put off deciding the constitutionality of those burdens to another day. Justice Clarence Thomas dissented, alone in wanting to face the music and strike down the law.
Now the question is whether, and for how long, the Court's decision can really stave off a constitutional decision.
A SECOND WAVE
Georgia Gov. Sonny Perdue filed a brief in the Austin case that amounted to a threat to launch a constitutional challenge, also indicating that what he described as the "flawed bailout mechanism" is unlikely to help him or slow him down. To win a bailout, he'd have to prove that none of Georgia's subdivisions have misbehaved under the act for the past 10 years.
But any second-wave challenge to Section 5 might not get to the Supreme Court for several years -- after the 2010 Census and the resulting redistricting. Civil rights advocates who view the act as a still-needed weapon to combat discrimination in voting are in no hurry for a rematch, and Congress, which might ordinarily respond to the Court's decision by fixing the statute, is unlikely to act quickly.
"We don't know that Congress needs to do anything," said John Payton, president of the NAACP Legal Defense and Educational Fund, which helped defend the law in the Austin case. Even if the Court's language was "grudging," Payton said, the bottom line is that the Court did not strike down Section 5. That reality, plus the expansion of the bailout option, may insulate the law from attack for a while, its supporters hope.
Hebert expects the Justice Department will respond to the ruling by "reaching out" to encourage bailout applications and acting on them quickly. In the past, bailouts were rarely sought, in part because eligibility standards were narrowly defined, Hebert said. The old definition of "political subdivisions" that are allowed to bail out included only those entities that actually registered voters, according to the Justice Department brief and the lower court ruling in the case. Under that definition, the Austin utility district -- and thousands of other political units -- did not qualify.
That fact makes the Court's June 22 decision all the more remarkable, said Paul Hancock, a partner in K&L Gates' Miami office who is also a veteran of the Civil Rights Division. Hancock litigated the City of Rome v. U.S. case, in which the narrow definition of bailout eligibility was upheld. "One could contend that what the Supreme Court did [in the Austin case] was more of a legislative act than a judicial one. They rewrote the law," said Hancock. "It's a dramatic change." Chief Justice John Roberts Jr., who wrote the majority opinion, justified the looser interpretation by noting the small number of bailouts that were granted under the old definition. "It is unlikely that Congress intended the provision to have such limited effect," Roberts wrote.
In that respect and others, the decision was stunning. Roberts managed to get conservative colleagues Antonin Scalia -- who is usually adamant about looking to the words, not the intent, of a law -- as well as Anthony Kennedy and Samuel Alito Jr. to sign onto a decision that stretched the words of a statute to achieve the goal of sidestepping the constitutional issue.
At the same time Roberts enlisted all of the Court's moderate or liberal justices -- John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- in the same decision, even though it included ominously negative language about the constitutionality of the act.
The law's formula for deciding what jurisdictions are covered by the preclearance requirement is based on "data that is more than 35 years old," Roberts wrote, and is eclipsed by the modern-day increase in minority voter turnout and the number of minority office-holders. "The act imposes current burdens and must be justified by current needs." Roberts also said the different treatment of different states under the law violates the tradition of "equal sovereignty" of the states. In short, he said, Section 5 raises "serious constitutional questions."
Some analysts said the majority was so critical that it puts Section 5 on life support already. The only way to save it is for Congress to change the law before another challenge makes it to the high court, said Thomas Goldstein of Akin Gump Strauss Hauer & Feld. "Congress is on the clock," Goldstein said on his SCOTUSblog. "If the statute remains the same by the time the next case arrives, the Court will invalidate the statute."
But if the decision is that much of a death knell, why would so many liberal justices who presumably support the law join it? Professor Rick Hasen of Loyola Law School, Los Angeles, operator of the Election Law Blog, guessed it was a pre-emptive move. "They could hold out the carrot of unanimity and allow for expression of doubt to put the issue off for another day," he said in an interview.
As for the tiny Austin utility district that brought the case to the Supreme Court, its lawyer, Gregory Coleman of Yetter, Warden & Coleman, is content with the outcome, even though the Court stopped short of striking down the law altogether. The case, he said, was "pleaded and briefed in the alternative from the beginning to give the Court more than one way to rule for us." Gaining a chance to seek a bailout, he added, is "what the district has wanted, to be free from the unjustified stigma of preclearance."