From today’s opinion in the Shelby County case, I was gratified (but somewhat surprised) to see the following passage in the district court’s discussion of NAMUDNO:
On appeal, however, the Supreme Court reversed and remanded. In a decision that has since been criticized by some as “a questionable application of the doctrine of ‘constitutional avoidance,'” see Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 SUP. CT. REV. 181 (2009); see also Ellen Katz, From Bush v. Gore to NAMUDNO:-A Response to Professor Amar, 61 FLA. L. REV. 991, 992-93 (2009) (describing the Court’s “statutory construction” of the bailout provision in Nw. Austin II as “contrived”), Justice Roberts, writing for an eight-justice majority, sidestepped the “big question” of Section 5’s constitutionality by instead resolving the case on narrower, statutory grounds, see Nw. Austin II, 129 S. Ct. at 2508. Specifically, the Court found that the plaintiff-district qualified as a “political subdivision” eligible to petition for bailout — even though it did not register voters and was therefore not a political subdivision as that term is defined in Section 14(c)(2) of the Act. See 42 U.S.C. § 1973l(c)(2) (defining “political subdivision” to include “any county or parish” or “any other subdivision of a State which conducts registration for voting”).