Against the backdrop of a high stakes, history-making, mega-media election cycle, the United States Supreme Court has been deciding important and noteworthy election law cases in areas as wide-ranging as voter identification requirements, judicial elections, and the regulation of political parties. The long-term impact of these decisions on the shape of American democracy has received relatively little popular attention in light of the immediate focus on the presidential elections. One election law opinion issued just this week, Riley v. Kennedy, underscores this point.

    Despite its highly technical facts and likely narrow application, Riley is significant because it limits the reach of an integral provision of one of the most transformative civil rights statutes and bodies of American election law—the Voting Rights Act of 1965 (VRA). By chipping away at the expansive reach of Section 5 of the VRA, the Court may be signaling a waning appreciation for this anchor provision of the Act, as well as for the broader statute itself which has safeguarded voting rights throughout the country for over four decades. More important, the Riley decision comes at a precarious time for Section 5 of the VRA as Northwest Austin Municipal Utility District v. Mukasey (NAMUDNO), a Texas case that challenges the constitutionality of Section 5 as a whole, will soon be poised for Supreme Court review.

    Section 5 of the VRA was originally enacted to serve as an aggressive antidote to the pervasive and persistent voting discrimination against African Americans by state actors in the South and was later expanded to include jurisdictions in other regions of the country. In short, Section 5 requires that all new election practices and laws be pre-approved or “pre-cleared” by a federal district court in Washington, D.C. or the Department of Justice before going into effect. The underlying notion is that federal oversight of state voting decisions is needed in light of the pernicious history of discrimination in the jurisdictions covered under Section 5.  Whether a proposed voting change is ultimately precleared depends on whether the proposed voting law or practice will put minority voters in a worse position than their present status or, in other words, whether the voting change is “retrogressive.”

    Riley narrows the pool of voting changes subject to Section 5’s protections. Specifically, Riley holds that, if a state’s highest court overturns a voting law, even one that had been precleared and enforced temporarily, the earlier law can go back into effect without any federal inquiry as to whether minority voters are now in a worse position than when the overturned law was in place.   While this scenario may not be common, the practical consequences of this holding in the Riley case and the broader implications concerning the Section 5 of the VRA are more readily apparent when you consider Riley’s specific facts. 

    Riley originated in Mobile County, Alabama, which is covered under Section 5 of the VRA, as is the entire State of Alabama. In 1985 the Alabama State Legislature enacted (and the Department of Justice precleared) a law providing that mid-term vacancies on the commission must be filled by special election and not by gubernatorial appointment as had been the practice since the passage of the VRA. This new law was challenged in Alabama state courts in 1987 and again when a vacancy arose in 2005 in District 1 of the three-member Mobile County Commission. That same year, the Alabama Supreme Court held that the law providing for special elections violated the Alabama State Constitution. As a result, a vacancy was created in District 1 and Governor Bob Riley appointed fellow Republican Juan Chastang to the commission to fill it. District 1 is overwhelmingly Democratic and over 62% African American. 

    The Alabama State Legislature subsequently enacted a new law providing that midterm vacancies be filled by special election.  Merceria Ludgood, an African-American female lawyer and Democrat, handily defeated Chastang with 80% of the votes in the special election that followed the state court decision. Ludgood’s term expires in November of this year; however, there is already talk of Chastang’s immediate reinstatement to the commission in light of the Riley decision. Considering the overwhelming lack of support for Chastang in District 1, this result that would seem to mock the ideals of the VRA and Section 5 in particular. The return to gubernatorial appointment would clearly place minority voters in District 1 in a worse position than they had been under the overturned law by forcing District 1 voters to be represented by someone who received a disproportionately low number of votes.         

    Justice Ginsburg, who authored the Court’s 7-2 decision in Riley, went to significant lengths to suggest that the opinion is limited to its facts. However, by elevating a state court’s decision above the longstanding, congressionally endorsed limitations on state’s rights that give the VRA its force, the Court seems not only to be indicating decreased support for the VRA, but seems to be exhibiting deference to more conservative concerns of the Court. Indeed, while Riley may seem like a strict case of statutory interpretation on its face, statutory interpretation is rarely, if ever, conducted in a vacuum where the VRA is concerned. Rather, the gradual weakening of Section 5 that was set in motion by the Rehnquist court in earlier decisions like Georgia v. Ashcroftand Bossier Parish School Board v. Reno, and later reversed through congressional reauthorization of the special provisions of the VRA in 2006, seems to have found a second wind and a new direction in the Roberts court. 

    Even some of the more faithful gatekeepers on the Court have expressed doubt as to the propriety of the VRA’s current scope in light of the impressive reform that has been achieved by its enforcement. Justice Stevens wrote in a dissent, joined by Justice Souter, that “it may well be true that today the statute is maintaining strict federal controls that are not as necessary or appropriate as they once were.”  Moreover, if Chief Justice Roberts’s acknowledged fixation during the Riley oral argument on the statutory language linking Section 5 to practices “in force or effect on November 1, 1964” is any indication of his position, it is conceivable that he would opt to limit Section 5’s reach to benchmarks set in 1964 when the VRA was first enacted. Thankfully, the Court did not take this up in the Riley opinion.  

    Riley’s deference to state courts in derogation of the congressional intent underlying the VRA seems even more misplaced when you consider the recognized role that certain state courts, like those in Alabama, have played historically in perpetuating discrimination in voting.  Notably, prior to 1985 when a voting rights challenge was brought successfully under another provision of the VRA, no African American had ever been elected to the Mobile County Commission. Justice Stevens points to the history of discrimination in Alabama in the last few pages of his dissenting opinion in Riley, which is the only part of the entire opinion that provides historical context for the enactment and continued enforcement of Section 5. 

    As noted above, these issues are most concerning in light the NAMUDNO case, which raises a direct challenge to the constitutionality of Section 5. Inasmuch as Riley is based on a narrow set of facts, the NAMUDNO case has broad and sweeping potential. Both cases indicate a growing skepticism in federal courts toward the role the VRA plays in the present-day electoral arena and, to the extent that the Court’s opinion in Riley is a bellwether, there should be growing concern by those who share an appreciation for the continued relevance of the VRA and one of its most powerful tools.