by Nicole Flatow
A federal appeals court rejected a challenge today to the constitutionality of a key section of the Voting Rights Act, concluding that Congress is in the best position to determine how to combat persistent racial discrimination in elections.
In a 63-page opinion, D.C. Circuit Judge David S. Tatel noted the persistence of “overt racial discrimination” in jurisdictions covered by Section 5, and called such discrimination “one of the gravest evils that Congress can seek to redress.” How best to combat this discrimination, he concluded, is “quintessentially” a legislative judgment.
“[W]e remain bound by fundamental principles of judicial restraint,” Tatel wrote.
Tatel’s opinion was joined by Judge Thomas Griffith, appointed by President George W. Bush.
After the Voting Rights Act was reauthorized by Congress in 2006, its constitutionality was immediately challenged. But in its review of the reauthorized law, the U.S. Supreme Court decided the case on narrower grounds, and avoided the question of the law’s constitutionality.
The D.C. Circuit Court’s 2-1 decision now paves the way for likely Supreme Court review of Section 5, which requires jurisdictions with a discriminatory history to obtain federal approval of any election procedure changes.
In an ACSblog post following the Supreme Court’s decision in Northwest Austin Municipal Utility District Number One v. Holder, the Lawyers’ Committee for Civil Rights’ Mark Posner pointed out that although Justice Roberts did spell out his concerns with Section 5 – a fact that has some court observers worried the court will strike down the law -- he also showed “an unusual homage to judicial restraint,” writing that "[t]he Fifteenth Amendment empowers ‘Congress,' not the Court, to determine in the first instance what legislation is needed to enforce it."
The question remains whether, this time around, the justices would take a more activist approach, as they have in other recent decisions.