Roberts' iffy support for voting rights

During the Senate debates, for instance, Roberts wrote that the attorney general had to "get \o7something\f7 out somewhere soon" [original emphasis] explaining the administration's position because the "frequent writings in this area by our adversaries have gone unanswered for too long." He called on the administration to take an "aggressive stance" against the changes to Section 2. When it was over and Section 2 had been amended, Roberts wrote that "we were burned."

None of these statements absolutely proves that Roberts is hostile to expansive voting rights legislation, but as he wrote in his talking points for the attorney general, circumstantial evidence (rather than a "smoking gun") should be enough to prove intent.

How many fewer minority legislators would be in office in Congress and in state and local legislatures if Roberts' position had prevailed in 1982? It is hard to say. But this is not just about the past; Roberts' view of voting rights may also have an effect on the future.

Portions of the act (though not Section 2) are set to expire in 2007, and Congress is expected to reauthorize them in some form. The most important provision up for renewal, Section 5, requires jurisdictions with a history of racial discrimination -- for instance, many cities and counties in the South -- to get "preclearance" from the Department of Justice before making any changes in voting procedures. The Justice Department grants preclearance only when the jurisdiction shows that the changes have neither a discriminatory purpose nor effect.

When Congress reauthorizes Section 5, will the Supreme Court uphold it against charges that it tramples states' rights? Some worry the court may not.

Justice Sandra Day O'Connor's votes in these federalism cases have been pivotal, and her vote in 2004 to uphold a provision of the Americans with Disabilities Act had given those in the civil rights community grounds to be optimistic that a renewed Voting Rights Act could pass constitutional muster.

Roberts' writings, on the other hand, show much more skepticism of congressional power, particularly on voting rights. Because Roberts viewed the "effects" language in Section 2 as an "intrusive interference" that is a "drastic alteration" of American government and "constitutionally suspect," why would he look charitably on a renewed Section 5?

I would not count on him to uphold it.