Back then, oral arguments indicated the Supreme Court was taking a skeptical view of the constitutionality of the act's Section 5, which requires certain jurisdictions with a history of racial discrimination to get federal approval of any changes to their voting laws and procedures. Oral arguments in a different case last week also strongly suggested a slim majority of the court believes now may be time to end Section 5.
Civil rights advocates in 2009 had braced for the justices to overturn the law's chief component. The vast majority of journalists, too, thought Northwest Austin Municipal Utility District No. 1 v. Holder -- known as NAMUDNO in the election law community -- would be the case that took down Section 5.
So when an 8-1 Supreme Court decision came down leaving Section 5 in place, advocates were pleasantly surprised. So, too, was the White House.
Unbeknownst to the public, President Barack Obama's administration had prepared a statement from Attorney General Eric Holder for the possibility that the court would strike down Section 5. Officials were so surpised the court didn’t toss out the section, in fact, that an alternative Holder statement -- praising the ruling as a “victory for voting rights in America” -- had to be written the day of the decision.
A written statement wasn't the only thing the administration did to prepare for a possible adverse court ruling in 2009. Greg Craig, the White House counsel at the time, recalled that his team "worked close with, kept track of, commented on, and met with an internal DOJ task force" on the Voting Rights Act issue. Other officials confirmed that there was a Voting Rights Working Group made up of both Justice Department and White House officials, and records show Holder was briefed by the group roughly a month before the Supreme Court decision.
"There were discussions about what would be the chain of events if Section 5 were overturned," said one official. "It is standard protocol when these issues come before the court for the White House counsel and the Justice Department to work together on worst-case scenarios."
At the time, the Justice Department's Civil Rights Division was essentially rudderless, with its head not yet confirmed by the Senate. Career employees were a bit more confident than the ranking political officials that Section 5 might survive, but weren’t involved in discussions about what would happen if it didn’t.
The administration's response would largely depend on whether the court found the provision unconstitutional, or found that the 1965 formula that determined which states were covered was outdated. Since Section 5 would be nearly impossible to replace if the Supreme Court found it unconstitutional, the administration had been planning to use the decision as a spark for a broader election reform proposal, two former officials said.
Likewise, Congress had two main types of legislative responses under consideration. The first was voter registration automatization, which had support among House Democrats, but didn't gain enough traction within the Senate. The second was to simply update the data upon which the Voting Rights Act was based, which would have meant that some states subjected to federal review would have been free to change election laws as they please, while others that had been free would be scrutinized.
"We should have done it then. Instead, we just went on auto-pilot," said one Senate Democratic aide, lamenting that the party may have been able to deal with the issue while controlling both houses of Congress.