Voting Rights Act: Constitutional but Still Vulnerable?

At last the Supreme Court has spoken on the latest challenge to the constitutionality of Section 5 of the Voting Rights Act. Instead of addressing the constitutional issues head-on, the Court decided the case on the narrow statutory ground of whether the utility district which initiated the Section 5 litigation is permitted to exempt itself from the Section 5 preclearance requirements.

Under Section 5 a designated jurisdiction, such as most of the South, the States of Texas and Arizona, and four counties in California, must submit any change affecting voting enacted after a certain date to the United States Attorney General or the United States District Court for the District of Columbia for a determination that the proposed voting change does not result in a retrogression or reduction of minority voting strength and that the change was not adopted pursuant to a discriminatory purpose. The most significant feature of Section 5 is that the burden of proof is reversed. The submitting jurisdiction has the affirmative burden of satisfying the Section 5 statutory burden.