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Thu Nov 15, 2012, 02:19 AM

Changing Times by Linda Greenhouse

When people talked during the presidential campaign about the potential impact of the election on the Supreme Court, most meant the impact on the court’s membership: whether Barack Obama or Mitt Romney would get to fill any vacancies during the next four years. The vote on Nov. 6 settled that question, obviously, but it also raised another tantalizing one: what impact will other developments during this election season, beyond the presidential vote itself, have on the nine justices?

I have two developments in mind: the vote in four states in support of same-sex marriage, and the run-up to Election Day that saw both Democrats and federal judges pushing back against Republican strategies devised to selectively minimize voter turnout. Both are directly relevant to cases on the Supreme Court’s current docket, and it’s worth at least considering whether either or both are potential game changers. If so, it wouldn’t be the first time in Supreme Court history that timing turned out to be everything.

Last week, the court agreed to decide the constitutionality of Section 5 of the Voting Rights Act, the provision that requires states across the old South, plus Texas and smaller jurisdictions around the country, to get federal permission before making any changes to their voting procedures. It was totally predictable that the court would take this case, and in making that prediction back in the spring, I described this latest challenge to the Voting Rights Act as “catnip” to the Roberts court, given the majority’s skepticism toward government policies that acknowledge the country’s racially fraught history by taking race into account today.

Stripped of its doctrinal framing, which I’ll discuss in a future column, the argument at the heart of this case, Shelby County v. Holder, is that Section 5, reauthorized by Congress in 2006 for another 25 years, is an anachronism, a continuing insult to states that have long since cleaned up their act and have put behind them the racist vote suppression that led to the enactment of the Voting Rights Act in the first place. . .

The Section 5 case the court accepted last week, which is from a county in Alabama, will be argued this winter, with a decision by the end of the current term in June. Given the open cynicism of the Republican-driven efforts at vote suppression this year, and the withering scrutiny of federal judges across the ideological spectrum, the question coming out of the 2012 election season is whether the optics of the voting rights issue have changed sufficiently to bring the Roberts court back from the brink to which it was surely headed. When the subject of voting rights felt like yesterday’s news, a quaint page from a fading history, using the Shelby County case to eviscerate Section 5 looked easy. With voting rights the stuff of today’s headlines, I’m no longer so sure.



In other words, by playing voter suppression 'games' with an eye to the just past election, states may have hoist themselves on their own petards.


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