Academic

Hasen on Northwest Austin Municipal Utility District No. 1 v. Holder

By Lawrence Solum

The upshot is that there may not be five votes on the court to uphold Section 5. In part, Congress can blame itself for not updating the law for more modern circumstances. (A Voting Rights Act that does not pay special attention to Ohio and Florida, for example, sounds as though it needs rejiggering.) As the law's challengers point out, the formula describing which jurisdictions are covered by the law is now based on 40-year-old data. And, of course, the election of the first African-American president is being touted by Section 5 opponents as evidence that race is no longer a problem in American elections. (To the contrary, a group of political scientists has shown that whites in jurisdictions covered by the Voting Rights Act were less likely to support Obama last November than whites elsewhere.) But the biggest problem is the court's strict federalism standard, which doesn't give Congress enough deference when it passes laws seeking to end discrimination.

The greatest danger in this case lies in how the court might strike down Section 5. And it is here that the lack of a middle path is particularly concerning. The statute allows jurisdictions that can prove they no longer engage in racial discrimination in voting to petition to bail out from coverage under Section 5. The utility district wants such a bailout. But the statute clearly says that only the entire state, like Texas (not a political subdivision of it, like the utility district) can ask for a bailout. Since there's no good statutory loophole, the larger constitutional question seems unavoidable.

Full post as published by Legal Theory Blog on April 27, 2009 (boomark / email).