The structure of the opinion is fairly interesting. Section I A presents a fairly sympathetic timeline of events leading up to the reauthorization of the pre-clearance requirement in 2006. Section I B mentions a brief history of the MUD district and the decision below, which held that the district wasn’t a “political subdivision.”

Section II is devoted almost solely to discussing the flaws in Section 5 of the VRA. After starting with a brief ode to the “undeniable” “historical accomplishments” of the VRA, noting that the Act now requires a heightened level of justification in-part because of its widespread success over the last 40 years. Chief Justice Roberts then thrashed the act for a slew of problems before eventually avoiding the constitutional issue.

One of the biggest questions this case presents is about why the traditionally liberal Justices, presumably supporters of Section 5 at its core, issued no clarifying concurring opinion about Section 5. There is a chance, and I think a very good one, that those judges hoped to send a unified message to Congress by joining only the Chief Justice’s majority opinion. If they had penned a four-Justice opinion concurring in judgement, there would be an increased chance that Congress would not heed the warning of the Court. The liberal Justices may see this nearly unanimous opinion as their best way of ensuring that Congress takes the Court’s warning seriously enough to make changes that will withstand review several years from now.

The Chief Justice penned an opinion that will make Judicial minimalists swoon. On its face, the opinion reads like a textbook example of judicial restraint (excuse the imprecise term) and the Chief Justice claims to move only as far as necessary to dispose of the case at hand. 30-years from now, if the Chief Justice’s lasting legacy is one of minimalism and incrementalism, this opinion will likely be one of his most famous. On the other hand, this may prove to be the calm-before-the-storm if the Court revisits Section 5 in the next few years and fulfills its promise to evaluate the section on its core constitutional issue.

Analysts have frequently brought up comparisons to Palm County Board of Commissioners and Bush v. Gore. After the Florida election fiasco in 2000, the Supreme Court issued a per curiam opinion telling the Florida Supreme Court, in effect, that it needed to reconsider some of its procedural findings or the Court would be forced to step in and intervene. The Florida Supreme Court didn’t take the hint and the Supreme Court then issued what is now considered to be one of the most politically-charged opinions of all-time.

Regardless of the path the courts and Congress take as a result of this opinion, one thing is certain: the Court’s opinion in NWAMUDNO represents a very serious warning to Congress. The Robert’s Court has not been unwilling to tackle very serious Constitutional questions such as the scope of the Second Amendment (Heller), privacy (Carhart), and the death penalty (Kennedy, Baze), and questions of race have been no exception (Parents Involved, Ricci). It will be interesting to see how seriously Congress deals with the issue and when, not if, the Court decides to revisit this issue at it’s core.

Related posts

• Initial Thoughts on Northwest Austin v. Mukasey (January 10, 2009)
• Final Argument Transcript of the Term – Northwest Austin v. Holder (April 29, 2009)
• Supreme Court Releases Opinions in Pearson, Fitzgerald, Locke, and Waddington (January 21, 2009)

The two opinions were written almost simultaneously and it would be difficult to imagine that each case wasn’t decided with the other in mind. In NWAMUDNO, the Court decided to punt on the most important issue, in Ricci, it will be much harder to avoid the core issues. Its hard to make any sort of prediction about what the VRA decision means for Ricci, but I think with the benefit of hindsight we will be able to compare the two opinions and come to some sort of understanding about the interplay between the two.

We first have to make some assumptions about the NWAMUDNO decision. Several scenarios may have played out in order to create the bizarrely unanimous criticism of the VRA but lets assume one of the most salacious. Justice Kennedy is initially the only Justice who wants to punt on the issue. Chief Justice Roberts shivers at the sight of a 4-4-1 opinion and decides to write the decision that would eventually be published to avoid forcing Justice Kennedy to sit down and decide the opinion “doesn’t write” and flipping to the liberal justices.

If Justice Kennedy really was the first, and still the only, Justice who truly wanted to punt, I think that would bode poorly for the city. The decision in NWAMUDNO was made only out of deference for a co-equal interpreter of the Constitution and I think the Court would not burden itself with that level of respect for a local civil service board mired in base racial politics. The court could be sending a very strong political message in Ricci about how comfortable it is with racial politics and further hint to Congress to get it’s act together.

If the Chief Justice, Justices Scalia, Kennedy, and Alito all wanted to punt on the issue and return it to Congress for further changes, the four liberal justices likely joined that opinion to send a message to Congress that they needed to change Section 5. There would have been five votes in favor of remanding regardless and the liberal justices knew a dissent from that would have been in vain.

Related posts

• Upcoming Cases to Watch (June 17, 2009)
• The Upcoming Weeks (May 16, 2009)
• State of the Docket (May 26, 2009)

The arguments made were certainly very interesting. Justice Scalia, while criticizing the near-unanimity with which Congress passed the VRA extension, made this observation:

You know, the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.

I wasn’t aware of an such law, but the concept seems silly. The fact that something is so clear as to illicit a unanimous judgement doesn’t seem to in any way suggest a particular path for its reasoning. Justice Scalia’s hypothesis that Congress has a bias in favor of maintaining the status quo with regards to the VRA might be correct, but I just don’t see it playing into the equation here. Both sides are trying to argue the VRA on its merits and I’m not sure political bias of congress has a major role to play in this case as a balancing factor.

Justice Kennedy brought up some soverignty issues that I didn’t expect to see during oral arguments:

[Y]et the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than the other. And does the United States take that position today?

The sovereignty issue seems a bit odd to me. When the VRA was passed in 1965, Congress used a test to determine which localities met certain conditions and if so, the pre-emption clause was applied to them and they were forced to comply with Section 5. Petitioners argue that the conditions that were at play in 1965 no longer apply and that if the same test was used today, only parts of Hawaii would fall under Section 5, but I the argument that the test was used to unfairly infringe upon the sovereignty of some states while leaving others alone seems bizarre.

Anyways, the arguments are definitely worth a listen if you have a few moments to spare.

Related posts

• Northwest Austin Municipal Utility District and the Future of Section 5 (June 24, 2009)
• Northwest Austin and the Forthcoming Ricci Decision (June 24, 2009)
• Initial Thoughts on Northwest Austin v. Mukasey (January 10, 2009)

Related posts

• Kagan May Not Argue Until OT09 (April 14, 2009)
• Final Argument Transcript of the Term – Northwest Austin v. Holder (April 29, 2009)
• C-SPAN Releases Oral Argument Audio Request History (April 16, 2010)

Related posts

• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)
• The Weeks Ahead (April 12, 2009)
• Kagan to Split Time with Waxman in Citizens United (July 24, 2009)

§5 of the Voting Rights Act, now 42 U.S.C 1973(c), forces certain ‘covered jurisdictions’ to have voting procedures pre-cleared by a three-judge panel from the District Court for the District of Columbia, per 28 U.S.C 2284. All appeals are immediately directed towards the Supreme Court and bypass the Court of Appeals.

If localities wish to change their voting procedures or practices, they must

institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b (f)(2) of this title

However, per §4 of the VRA and 42 U.S.C 1973(b) localities may ‘bail out’ of the program if they have had no infractions of the VRA in the last 10 years.

In the case here, the Northwest Austin Municipal Utility District Number One complied with §5 of the VRA and brought a case under §4 of the VRA in the US District Court for the District of Columbia in order to apply for a bail out. The district argued that they were eligible for the bailout per §4 based on their impeccable record of guaranteeing voter rights. Alternatively, they argue that §5 is unconstitutional when set to the congruence-and-proportionality test set out in City of Boerne v. Flores (1997). They maintain that if a district with a record like this one cannot activate a §4 bail out, §5 effectively binds districts indefinitely.

On May 30, 2008, the district court ruled against the district holding that (1) the district is not an ‘political subdivision’ as defined in the section and therefore is not eligible for §4 relief, (2) the rational-basis test is the appropriate test for concerns under the fifteenth amendment and §5 satisfies said test, and finally (3) §5 also passes the more stringent congruence-and-proportionality test.

The VRA gives the district the opportunity to appeal directly to the Supreme Court and therefore their case not heard by any intermediate appellate court. In one of their briefs to the Supreme Court (here), the district argues that, among other reasons, the election of Barack Obama shows that the United States political arena has changed drastically from the one that existed when the VRA was passed in 1965.

There is no warrant for continuing to presume that jurisdictions first identified four decades ago as needing extraordinary federal oversight through §5 remain uniformly incapable or unwilling to fulfill their obligations to faithfully protect the voting rights of all citizens in those parts of the country.

The brief for the appellant, the district, is due on February 19 and the response from the appellee will be due on March 20. The court will almost certainly hear arguments during the April sitting, which begins on April 20 and lasts until April 29.

Related posts

• Northwest Austin Municipal Utility District and the Future of Section 5 (June 24, 2009)
• Northwest Austin and the Forthcoming Ricci Decision (June 24, 2009)
• Final Argument Transcript of the Term – Northwest Austin v. Holder (April 29, 2009)