McDonald: Court Signals No Future Challenges to Section 5

Michael McDonald sends along this guest post:

    Like the cartoon Road Runner, the Supreme Court Justices nimbly stepped through a door they drew in thin air to sidestep the oncoming train that, if derailed, would have ended Section 5 of the Voting Rights Act. Section 5 requires certain “covered” jurisdictions identified by Section 4 to submit changes in election administration to the federal government for approval before they can take effect. In NAMUDNO v Holder, the Justices interpreted Section 4 “bailout” — the ability for jurisdictions to petition the federal courts to escape Section 5 coverage — as applying to all jurisdictions, including a municipal water district, despite the lack of such enabling language in the Act.
    This technical interpretation allowed the Court to avoid ruling on the larger issue of the constitutionality of Section 5, despite clear misgivings about it. As simply stated in the opinion:

      Our usual practice is to avoid the unnecessary resolution of constitutional questions. We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of s5.

    In crafting this decision, the Justices have effectively signaled that they will avoid ruling on future constitutional challenges to Section 5, as well. The logic is straightforward. Any jurisdiction that has the resources to challenge the constitutionality of Section 5 also has the resources to petition the federal courts for bailout. A covered jurisdiction challenging the constitutionality of Section 5 will be shown the bucket for bailout. A covered jurisdiction that does not qualify for bailout due to recent evidence of discriminatory practices will make a poor plaintiff, and will only reinforce the need for Section 5.
    The irony is that there are a number of covered jurisdictions that routinely submit their election administration changes and the federal government routinely approves them. It is easier for these jurisdictions to continue coverage than to go through the more costly bailout process. These jurisdictions thus become trapped in the monitoring regime and resources are wasted, both by the local jurisdictions and the federal government, while perhaps less attention is paid to jurisdictions that deserve monitoring.
    We can do better than this ACME-built monitoring system. The country would be better served by placing the onus for bailout on the federal government rather than the local jurisdictions. Unfortunately, by sidestepping the constitutionality question, the Supreme Court has given Congress a free pass on updating the Voting Rights Act. Without the Courts to challenge Congress, we will have to wait another twenty-three years when the current incarnation of Section 4 expires before Congress will revisit the bailout issue.

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