Commentary: Voting Rights Act a defining moment for Supreme Court

May 4, 2009 

This editorial appeared in The Miami Herald.

In a few weeks, the U.S. Supreme Court will rule on a case involving a key provision of the Voting Rights Act of 1965. Although the case is widely seen as potentially devastating for the historic civil-rights act, the decision actually could put the court's conservative majority at risk of doing something they have criticized in other judges – practicing judicial activism.

The case involves a request from a small water district in Texas to be exempted from Section 5 coverage of the voting-rights law. Section 5 applies only to a handful of states with a history of discrimination – Virginia, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas – and parts of seven other states with similar histories.

If the court follows its own tradition of deciding cases on narrow legal grounds, it would simply answer the question asked in the petition: Should the Northwest Austin Municipal Utility District, which claims to have no history of racial discrimination, be exempt from Section 5 coverage? Deciding cases on the narrowest grounds possible is a proven and widely accepted principle of all courts, including the Supreme Court. There is good reason for this. A close reading of the law allows a court to avoid controversial or political entanglements that can limit or compromise future court decisions. Moreover, courts generally tend to leave politics to the politicians, which leaves the courts free to do what they do best: focus on the facts and the law -- and make their decisions accordingly.

In this case, however, judging from the pointed questioning of lawyers and witnesses during oral arguments last week, some of the justices have bigger things in mind than the water district. Justice Anthony Kennedy, who has been the court's swing vote in key 5-4 decisions, asked a series of questions – 17 of them altogether – that were critical of the approach Congress took in renewing the act in 2006. "Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio," Justice Kennedy said. "The sovereignty of Alabama is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments in the other."

To read the complete editorial, visit The Miami Herald.

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