A Few Jet Lagged Thoughts on NAMUDNO

I'm still in London, was out all day, and didn't have a chance to even see the NAMUDNO opinion until about an hour ago. For what it's worth, here's what I wrote on Sept. 12, 2006, when this panel was named:

This is likely a good draw for defenders of the constitutionality of section 5. But I don't think the lower court opinion is going to matter very much, however it comes out. This issue---either in this case or one of the others being filed---will be resolved when the Supreme Court resolves it.

Having looked quickly today at the opinion, I'd say that this is about the best that supporters of the law could have hoped for. Here's a well-written and well-reasoned opinion, arguing in the alternative, relying on stare decisis, careful parsing of cases, and the best presentation of the evidence that could be made on this record.

Having said that, I have a hard time believing it would convince someone like Chief Justice Roberts. What could be convincing to him, however, is the political fallout that would come from a decision striking down the VRA. On the third hand, let's not forget what Justices Stevens wrote this week about the necessity of the VRA in his Riley dissent. For my own pre-NAMUDNO take on the constitutional issues, see this article. (Statistics from the article, cited in my testimony before the Senate Judiciary Committee on VRA renewal, are discussed in the court's opinion.)

I wonder too whether the Court will want to take advantage of some technical reason (such as standing or the facial/as applied challenge issue) to duck the question in this case and put it over to a future case.

Posted by Rick Hasen at May 30, 2008 03:03 PM