Tuesday, July 26, 2011
Dr. Greg Rabidoux asked yesterday on the American Constitution Society blog, Will the Roberts Court Kill the Voting rights Act?
Rabidoux argues that the VRA, especially Section 5, the "preclearance" requirement, might be on its last leg, based on Chief Justice Roberts's opinion in Northwest Austin Municipal Utility District v. Holder. The Court in that case dodged the constitutional question--whether Congress had authority to reauthorize the preclearance requirement of the VRA--by holding that the District (or the "MUD") was eligible for bailout from the preclearance requirement. Chief Justice Roberts wrote for eight members of the Court (all but Justice Thomas, who would have ruled Section 5 unconstitutional) and said that the VRA has some "serious constitutional concerns," but went no farther in exploring the constitutional question.
Rabidoux correctly predicts that two cases now working their way through the courts may give the Supreme Court an opportunity to take on the constitutional question--and to rule the preclearance requirement outside the bounds of congressional authority. Those cases are Shelby County v. Holder (now in the district court for D.C.) and LaRoque v. Holder (now in the D.C. Circuit).