Persily: Exhausted by Exhaustion

Nate Persily sends along this guest post:

    Rick Pildes takes me to task for suggesting the Court might perpetually avoid the constitutional shortcomings of the coverage formula for the VRA. He mistakes my speculation and kremlinology of the Court for a legal argument, so only a few words are necessary in response.
    First, just to be clear, I specifically said in my post that the Court might reach the constitutional issues posed by the coverage formula. As I said, “Of course, each of these situations presents the possibility that the Court will deal with the larger issue of the law’s constitutionality. And if we view the NAMUDNO decision as simply a warning shot to Congress, maybe the Court will shoot more directly if Congress does not act soon (which was my initial response to the decision).” I would also add that congressional inaction and the absence of moves by DOJ to encourage and achieve bailouts would make this aggressive move more likely. To be sure, the Court has not boxed itself into a corner with NAMUDNO. Its freedom to strike down the VRA rests only on the vitality and willingness of the five members who vote to do so.
    Also, it is wrong to suggest that I ignored the possibility of a facial challenge that squarely presents the issue of the constitutionality of the coverage formula. That was the first scenario I described: “a covered jurisdiction could argue that Congress has exceeded its authority under the Enforcement Clauses by requiring the jurisdiction to submit its voting law changes for federal approval.” The Court might resolve that challenge by rejecting it, but nevertheless strongly suggesting the jurisdiction ought to be eligible for bailout should it bring such an action.
    It is also possible, as Pildes suggests, that the Court would take that opportunity to declare the coverage formula unconstitutional for the same reasons it raised constitutional doubts in NAMUDNO. I gather he deems it either impossible or very unlikely that the Court might do what I suggest. Obviously, Pildes could be right that if bailout is viewed as burdensome, let alone futile, then the jurisdiction could argue that it should not be subjected either to coverage or to bailout. In this regard Pildes compares the state of Georgia to an unmarried woman forced to seek court approval for an abortion.
    I guess I see the bailout option differently, or more to the point, I think the Court might. We may have an honest disagreement as to what legal options are available to the Court. I think this disagreement may revolve more around our perception as to Justice Kennedy’s willingness to resolve the constitutional issues when other options are available (or around whether the bend-over-backwards quality of NAMUDNO was a ticket to that train only). In the series of cases where the Roberts Court has eschewed facial challenges for as-applied ones, or has opted for statutory, instead of constitutional, grounds for a decision, I see the possibility (though nothing close to certainty) that it will do so again. Of course, NAMUDNO could be to the next VRA case what Wisconsin Right to Life looks like it will be for Citizens United: a prelude to bolder action.
    Just to be clear, as my erroneous and contemporaneous postings on the NAMUDNO oral argument attest, I thought the Court was going to strike down section 5 in NAMUDNO itself. So, the most I can muster in predicting the next case, not yet even conceived, is to say that the Court, once again, might find a way out of the constitutional controversy.

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