Bench Memos

NRO’s home for judicial news and analysis.

Today’s Supreme Court Decision in Northwest Austin Municipal Utility District Number One v. Holder


The Court managed to avoid the question of the constitutionality of Section 5 of the Voting Rights Act by ruling 8-1 that the statute’s “bailout” provision should be interpreted more broadly. The good news is that more jurisdictions will now be able to apply for this exemption from coverage of Section 5; indeed, the Court’s decision should be read as encouraging more jurisdictions to do so (although it’s very uncertain whether many jurisdictions will take such a politically dicey step).

The disappointing news is that conservatives had hoped, especially given the tone of questions at the oral argument, that a majority of justices agreed with us that Section 5 is no longer factually justified (as Justice Thomas, the only justice to reach this question, concluded), and would say so. Section 5 is unconstitutional because it bans election practices that do not violate the Constitution, because it is extraordinarily intrusive in terms of federalism principles, and because it actually encourages government behavior that is unconstitutional, namely the racial segregation of voting districts through racial gerrymandering.

Still the Court has left the door open for future challenges — and not only to Section 5, by the way, but for an even more constitutionally dubious provision in the Voting Rights Act: its requirement that many jurisdictions print ballots and other election materials in foreign languages.

We look forward to these future challenges — and to the Court’s correct resolution of them.


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