We could know as early as this afternoon whether the Supreme Court will note probable jurisdiction and vote to hear the appeal in Northwest Austin Municipal Utility District Number One v. Mukasey, considering the question whether the renewed section 5 of the Voting Rights Act, requiring “covered jurisdictions” to get permission before making changes in their voting laws, is constitutiional.
Previewing the decision, USA Today offers Supreme Court Considers Challenge to Voting Rights Act. Former NY Times Supreme Court reporter Linda Greenhouse has written an oped for today’s Times, The Chief Justice on the Spot. Bob Bauer comments on Linda’s article.
This is an issue I’ve been following for a long time, beginning with this 2005 law review article raising the constitutional question, and my testimony before the Senate Judiciary Committee in 2006. I invited leading election law scholars to comment on this blog about the constitutionality of the renewal process, and all of those posts are available at this link. The Future of the Voting Rights Act also contains many important contributions on this question. See also Sam Issacharoff’s Is Section 5 a Victim of Its Own Success? and Mike Pitts’ response.
Among the most important pieces of scholarship on this topic since Congress renewed section 5 are Nate Persily’s Yale Law Journal piece, with must-read responses by Rick Pildes and Ellen Katz, Morgan Kousser’s Texas Law Review piece, and Kristen Clarke’s piece for the Harvard Civil Rights-Civil Liberties Law Review.
It is hard to handicap what the Court is going to do. (And one possibility is that they do nothing today—recall that the recent Capterton v. Massey was relisted multiple times and then ultimately set for argument.) It actually may come down to where Justice Scalia is on this case. As I note in my piece in the Future of the Voting Rights Act book, he has expressed some reservations about the Court’s “congruence and proportionality” test, and seemed to indicate that when it comes to race, he views Congress’s power to regulate more broadly than otherwise. It is also such a politically sensitive case that I am not sure that the Court would want to wade into these waters. On the other hand, Chief Justice Roberts has a keen interest and less than sympathetic view of the Act, and a decision to summarily affirm the appeal in NAMUDNO would be a decision on the merits (not just like a denial of cert.), declaring that the lower court got it right in upholding section 5’s constitutionality, even if for the wrong reasons. I have a hard time believing he’d sign off on that.