Yesterday in my blog post on the Texas redistricting cases, I noted an exchange between Chief Justice Roberts and attorney Jose Garza in which the Chief made it clear that the Court was not going to use the Texas case to reconsider the constitutionality of section 5 of the VRA (which requires jurisdictions with a history of discrimination to get permission from the federal government before make changes in any voting practices or procedures).

But now I want to highlight another exchange from the transcript:

JUSTICE KENNEDY: And section 5 applies only to some States and not others. Texas is at a tremendous disadvantage here in defending the section 2 suit and in drawing — and in having — and the judiciary is at a disadvantage in framing a remedy for a likely, a likely section 2 violation in some of the districts.

As I explained in a recent Slate piece on DOJ’s denial of preclearance of the South Carolina voter identification law, there are a large number of cases raising the question whether section 5 exceeds congressional power, either because it is no longer necessary to stop intentional discrimination by covered states and/or because there is no evidence the covered states present a greater danger of intentional discrimination by race than other states, and so it imposes an unfair, and uneven, federalism cost.  (I’ve been flagging this issue—and disagreeing with the Supreme Court’s new federalism jurisprudence in this area—since 2004.)  Some of the cases, including one I expect South Carolina to file soon, have the potential to reach the Court with the constitutional question before the 2012 elections.

Justice Kennedy’s statement is an important reminder that the likely swing voter on the Court on the constitutionality of the Voting Rights Act is feeling Texas’s pain in this case, and though the constitutional question is not posted in the Texas case, it is the 800-pound gorilla in the room.  The Texas case will be on Justice Kennedy’s mind when the constitutional question returns to the Court in the near future.  I don’t expect Texas to need to seek preclearance during the 2020 round of redistricting.