June 23 (Bloomberg) -- Consensus is back at the U.S. Supreme Court under Chief Justice John Roberts -- at least for a day.

Issuing perhaps the most highly anticipated ruling of its nine-month term yesterday, the justices voted 8-1 to avoid ruling on whether a central provision of the Voting Rights Act is constitutional. Roberts’s opinion for the court circumvented that issue by instead making it easier for some jurisdictions to change election procedures and district lines.

The compromise ruling comes from a court that has divided along ideological lines in the past two years on race, terrorism, campaign finance, abortion and the death penalty. The decision recalled Roberts’s first term in 2005-06, when the court ruled unanimously in an abortion case and Roberts spoke publicly about his desire for consensus.

“It’s quite clear that there is division on the court” about the Voting Rights Act, said Nathaniel Persily, a political scientist and election-law professor at New York’s Columbia Law School. “Instead of engaging and exposing the divisions, John Roberts cobbled together a broad majority to produce a consensus position.”

The ruling surprised some observers, Persily among them. During arguments in April, Roberts and swing vote Anthony Kennedy led a chorus of justices in suggesting they might strike down the provision, known as Section 5. It requires officials in eight states and parts of eight others to get federal clearance before making election-related changes that could affect minorities.

Validity Questioned

Roberts’s opinion was laden with skepticism about the provision’s validity, even as he hailed the Voting Rights Act’s success in eradicating the most blatant discrimination and increasing minority voting.

He suggested the 35-year-old formula for determining which states were covered was outdated. He also questioned whether Congress had enough evidence to treat states differently from one another.

“The act’s preclearance requirements and its coverage formula raise serious constitutional questions,” he wrote.

Still, Roberts and the other seven justices in the majority opted not to answer those questions, instead interpreting the statute to eliminate any need to address them.

The opinion said any governmental entity, including the Texas utility district involved in the high court case, could seek an exemption under Section 5’s so-called bailout procedure. A lower court had said only states, counties and a handful of other local government entities could invoke that provision.

Avoiding Divisiveness

How the court came to that conclusion was a topic of speculation yesterday among election-law experts. Rick Hasen, an election-law professor at Loyola Law School in Los Angeles, wrote on his blog that Roberts might have “wanted to avoid the political divisiveness” that a constitutional ruling would have produced.

Another possibility is that Kennedy wasn’t willing to provide the fifth voted needed to strike down the provision and Roberts “thought it would be more politically expedient for the entire court (or most of the court) to go in that same direction,” Hasen wrote.

In an interview, Hasen said he was struck that a compromise opinion came from Roberts, a skeptic of the Voting Rights Act since his days in the Reagan administration in the early 1980s.

“He’s a strong believer in the colorblind view of the Constitution,” Hasen said. “It sure looked like from the questions in the oral arguments that he was a strong vote to strike the provision down.”

Spectrum of Support

Whatever the behind-the-scenes maneuvering, Roberts’s opinion garnered the support of liberals and conservatives alike, with only Justice Clarence Thomas dissenting. The result cheered defenders of the Voting Rights Act.

“However grudgingly, a remarkably harmonious court acknowledged how important Section 5 remained,” said John Payton, director-counsel of the New York-based NAACP Legal Defense and Educational Fund. “That’s a very significant accomplishment there.”

One of the utility district’s lawyers, Christian J. Ward, called the ruling a “total victory for our client.” He said the ruling “opens the door for the thousands of little jurisdictions like our district to seek a bailout.”

Other opponents of Section 5 lamented that the court didn’t go further. “The court stopped short of its duty to defend the constitutional principle that federal power is and should be strictly limited,” said Sharon L. Browne, an attorney with the Pacific Legal Foundation in Sacramento, California.

Temporary Harmony?

The harmony among the justices may prove temporary. Before wrapping up its term in a week or so, the court will decide several other cases that produced divisive arguments, including fights on student strip searches and political spending.

The court will also rule on an appeal by white Connecticut firefighters who were denied promotions. A three-judge appeals court panel that included Sonia Sotomayor, now a Supreme Court nominee, threw out their lawsuit.

The Voting Rights Act case “is about as sensitive a case as you’re going to get at the court,” Hasen said. “If there’s ever a time to forge consensus and maybe fudge a little on the technicalities, this is it.”

The case is Northwest Austin v. Mukasey, 08-322.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

Last Updated: June 23, 2009 10:46 EDT