The most surprising action from the Supreme Court's latest term may be what it did not do: strike down Section 5 of the Voting Rights Act (VRA) as unconstitutional. After the oral argument in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), most Court observers expected the Court to issue a strongly divided opinion invalidating Congress's reauthorization of the provision that requires certain "covered jurisdictions" to seek preapproval, or preclearance, before enacting any change that affects voting. Instead, the Court issued an 8-1 opinion that avoided the constitutional question and decided the case on a narrower statutory ground. This Essay discusses what the Court said -- and did not say -- in NAMUDNO and explores the emerging trends in current election law jurisprudence.
I proceed in three Parts. Part I discusses the Court's statutory interpretation and constitutional avoidance approach in NAMUDNO. In Part II, I explain how each current Justice generally views the VRA by coding each Justice's votes in prior VRA cases as either "expansive" or "restrictive" toward the Act. Part III concludes by analyzing how the Court's recent approach in NAMUDNO and other election law cases reveals a trend toward "strategic compromise" among the Justices in this area. Based on the Justices' typical voting patters, the decision in NAMUDNO was quite surprising. I explain the outcome by looking at how the Justices, over the past few years, have compromised their usual positions in election law cases in favor of a strategic and incremental approach to effectuate their long-term goals (or ward off starker and less favorable results).
This Essay thus provides some historical and analytical backbone to the debate surrounding how the Court approaches VRA cases. That is, I hope to provide context for the continued discussion of these issues in light of the Court's constitutional avoidance approach in NAMUDNO. My goal here is merely descriptive: What did the Court do in NAMUDNO, how does that comport with the Justices' typical voting patterns in VRA decisions, and what does this mean for future cases?
Joshua A. Douglas, The Voting Rights Act Through the Justices' Eyes: NAMUDNO and Beyond, 88 Texas Law Review See Also 1 (2009)