NAMUDNO and the Phantom Exhaustion Requirement

I’ve been thinking about the issues Nate raises in his post, and I’ve corresponded privately with some people about this issue. My view is somewhat different from Nate’s, though I’m sure there will be a segment of the civil rights community that will think along these lines and argue that nothing should be done with preclearance (not only is that risky, but it gives up an opportunity to craft what Rick P, Sam, Guy, Bruce and Dan T. have called for–not to mention Nate in some of his writings—a new VRA for a new century, because the Court will never act (isn’t that the message Pam sends in her piece in the Times?).
The Court never says in its NAMUDNO opinion that a jurisdiction must seek bailout in the future before raising a constitutional challenge. Sure, that’s the natural reading of NAMUDNO, but who says natural readings are going to apply when this question returns (they certainly didn’t apply to the reading of the bailout rules themselves in NAMUDNO)? Again I’m reminded of the first Florida 2000 case, Bush v. Palm Beach County Canvassing Board. The case contained a lot of dicta suggesting a very aggressive reading of Article II of the Constitution and Legislative power. However, as I detail here, by the time we got to Bush v. Gore, only three Justices embraced that reading of Article II, four rejected it, and two (Kennedy and O’Connor) were silent on the question. That dicta may have been a shot across the bow, but no one was bound by it when it came down to the time to act. The liberals were willing to send that shot across the bow because they did not know where the 5 conservatives ultimately would end up.
Nate could well be right that the Court never passes on this question. But if Congress does nothing, I would not count on a logical but unstated and dicta-implied exhaustion requirement to save the constitutionality of section 5.

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