Another Way Out for the Supreme Court in NAMUNDNO?

I’ve been very pessimistic about Section 5′s chances of surviving in the Supreme Court, going so far as to suggest new congressional legislation that could moot the case. I don’t see any movement in that direction.
But Gerry Hebert offers a technicality that could allow the Court to reject the plaintiff’s challenge and leave the issue open for another day. You can read his post for the details, but the basic thrust is that, though the district may have standing to raise a facial challenge to the law, in fact in its lawsuit below the district may have abandoned the challenge, raising only an as applied challenge. For reasons Gerry explains, there well may not be standing to bring such an as applied challenge.
If (and it is a big if) Justice Kennedy does not want to decide this case right now, I’m sure he’d find at least four more votes willing to say that there is a lack of standing. The upshot would be that the question of section 5′s constitutionality would await a new lawsuit (assuming another jurisdiction not presenting the same standing issues) or an amended lawsuit in NAMUDNO, buying a couple of terms before the issue returns to the Supreme Court. By then, perhaps Congress would have fixed some of the constitutional issues with the VRA, or there could be changes in Supreme Court personnel (though that is not overly likely in a way to influence the outcome of the vote).
Especially if the Court does something bold in the campaign finance case (such as striking down the longstanding ban on the spending of corporate treasury funds in federal elections), it might want to leave the VRA issue for another day.

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