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What's Next For The Voting Rights Act?

This story was written by Stephen Ansolabehere and Anthony Salvanto.
This week the Supreme Court decided (in an 8-1 vote) a closely watched case challenging the constitutionality of the Voting Rights Act. Its decision – and perhaps more importantly, what it didn't say – leaves open a debate that could echo through the next round of legislative redistricting in 2010 and beyond.

The suit, brought by the North Austin Municipal Utility District Number One -- NAMUDNO, for short -- questioned whether Congress has the power to impose voting rights obligations on some states and jurisdictions but not others. Specifically, section 5 of the Voting Rights Act requires that 8 states and several dozen counties must receive prior approval from the Department of Justice for any changes they want to make in their election administration practices.

Some observers expected the Court use the case to declare section 5 of the VRA unconstitutional. Instead, the Justices made a narrower ruling, allowing the utility district to appeal to get out from underneath those "pre-clearance" rules. This decision could in itself have implications for the VRA's power: if many local jurisdictions are able to get out from underneath statewide coverage, then the VRA could lose much of its authority over local election administration.

But the Court did not decide whether it still considers all the VRA's protections for minority voters as necessary, forty years after its initial passage and the election of President Obama. As that debate continues, it could add to the already-contentious process of redistricting that looms after 2010. Even as the Court decided not to formally weigh in on it, Chief Justice Roberts wrote for the majority that the VRA section in question might not account for "current political conditions," an apparent opening for future challenges. How the Court would decide future cases in this domain could depend on Justice Kennedy, who has cast the pivotal vote in other recent voting rights cases.

After the 2010 Census, the new count of the population will force state and local governments redraw political boundaries from precincts to U. S. House districts, partly in order to comply with the VRA, the requirement of equal population districts, and other standards. New boundaries may bring new lawsuits, as they have in the past -- and so could reopen the questions of the currency and constitutionality of the Voting Rights Act.

Some have called for Congress to revise the Act in order to preempt future lawsuits or actions by the Court. If it did so, Congress would likely need to review and re-establish which areas will be covered by the VRA's rules, and which will not. Congress renewed and President George W. Bush signed an extension of section 5 in 2006. But as many commentators have already noted, Congress might read the Court's latest opinion not as tacit approval of the VRA, but as a sign that it needs to undertake another review.

The existing formula for that coverage determination is based on voting behavior patterns that existed in the 1960s and 1970s. If Congress decides it is needed, certainly there is a wealth of data from recent election returns and other sources that offer new information about the American electorate today.

For example, in an amicus brief (not taking a side in the case) Nathaniel Persily, Stephen Ansolabehere (co-author of this entry) and Charles Stewart provided the Court with an examination of voting patterns in the 2008 election, finding that they "revealed the intransigence of racial differences in voting patterns," pointing out that there were "persistent geographic and racial differences" in 2008 and differences between areas covered by the VRA, and those not covered. "President Obama's victory," they wrote, "derived from an increase in his share of the white vote in the noncovered jurisdictions and a nationwide increase in his share of the vote cast by racial minorities."

The next couple of years are sure to bring more heated debates over all this – all central questions about how the nation sets the very ground-rules for its elections.

Stephen Ansolabehere is Professor of Government at Harvard University and a CBS News Consultant. Anthony Salvanto is CBS News' Director of Elections.

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