Wednesdays on the Steps – NAMUDNO Election Law Update

Sorry guys, no oral arguments this week. Despite the fact that there are no arguments I have been combing the news, trying to find something of interest that relates to the Court. I could reenact the classics with some Supreme Court bobbleheads. Or I could point you to this quirky post about Chief Justice Roberts. But I found something a bit more serious.

You'll recall the case of NAMUDNO vs. Holder. It dealt with whether a Texas utility district could seek an exemption from the pre-clearance requirements of the Voting Rights Act. After a surprising Supreme Court decision the case has seemingly run its course. Once remanded to the District Court the parties have reached an agreement.

Last month RNLA member David McFadden reviewed Abigail Thernstrom's book Voting Rights and Wrongs: The Elusive Quest for Racially Fair Elections. In that review he examined NAMUDNO and Section 5 of the Voting Rights Act:

The weakness of the evidence of continuing violations of the Fifteenth Amendment raises the question of whether, in renewing section 5, Congress exceeded its authority to enforce the Fifteenth Amendment. Thernstrom discusses expectantly and hopefully a case that was pending before the Supreme Court as she wrote. That case, Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), gave the Court the opportunity to find section 5 unconstitutional. But it was not to be. The decision was handed down the same month as the book was published (June 2009) and avoided deciding the constitutional issue. Perhaps a second edition of the book could consider NAMUDNO.

In a second edition there would be much to say about NAMUDNO, for while the Court did not decide the constitutional issue, it discussed it extensively and ruled on an alternative ground that holds some promise. Writing for the Court, Chief Justice Roberts cast doubt on the constitutionality of section 5. In dicta, the chief justice discussed the dramatic increases in registration of minorities, the substantial federalism costs imposed by section 5, and the antiquity of the coverage formula. Justice Thomas, concurring in part and dissenting in part, contended that the Court should have reached the constitutional question and held section 5 unconstitutional. No one wrote separately to defend section 5.

The holding of the case is also intriguing. The utility district had sought a declaration that section 5 was unconstitutional or, in the alternative, a declaration that the utility district could avail itself of the provision in section 4 allowing states and political subdivisions to bail out of sections 4 and 5 if they meet certain requirements. The Court agreed with the utility district's statutory argument and, having granted relief on statutory grounds, adhered to its principle of not reaching constitutional questions unnecessarily. The resolution of the statutory question broadened the meaning of "political subdivision" as that term is used in section 4. The Court noted that only seventeen jurisdictions out of more than 12,000 had successfully bailed out.

The holding suggests a solution to section 5's impositions short of a declaration of unconstitutionality. The dicta raises the hope that such a declaration is possible􀂲if another jurisdiction is willing to challenge section 5 (only two governors submitted amicus briefs on behalf of the utility district). Yet all actions, however slight, taken by the judiciary or by political appointees at the Justice Department to curb the excesses of the Voting Rights Act have been met with gales of protests from civil rights activists, who waive the bloody shirt of disenfranchisement and Jim Crow. That sort of response can be expected for any effort to follow up on NAMUDNO. But the arguments and the mettle of Voting Rights and Wrongs, with or without a second edition, will be an invaluable aid in such an effort, an effort that must be undertaken unless we are to become a nation of cowards.

We've learned that once the case was remanded to the District Court on September 22^nd DOJ and NAMUDNO rapidly came to an agreement. I guess we won't be seeing NAMUDNO before the Court again. SCOTUS BLOG has a more thorough discussion of the case and has a copy of the proposed consent decree.