Joshua A. Douglas

88 Texas L. Rev. See Also 1

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In this Essay, Douglas tells us that “[t]he most surprising action from the Supreme Court’s latest term may be what it did not do:  strike down Section 5 of the Voting Rights Act . . . as unconstitutional.” Douglas explores the Court’s recent decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), in which the Justices managed to avoid invalidating Congress’s reauthorization of the “preclearance” provision of the Voting Rights Act (which requires preapproval for changes to voting procedures in covered jurisdictions). This Essay explores the reasons behind the Court’s 8–1 opinion, which resolved the issue on narrow statutory grounds, and what the comments in dicta by various Justices may mean for future election law cases.

Douglas first discusses the Court’s statutory interpretation and constitutional avoidance approach in NAMUDNO.  He then explains how each current Justice generally views the Voting Rights Act (VRA) by analyzing their voting patterns in previous VRA cases.  He concludes that the Court’s recent approach in NAMUDNOand other election law cases reveals a trend toward “strategic compromise” among the Justices in this area. Over the past few years, Douglas argues, Justices on the Court have “compromised their usual positions in election law cases in favor of a strategic and incremental approach to effectuate their long-term goals (or ward off starker and less favorable results).”

This Essay includes an Appendix — a table of VRA cases and individual Justices’ voting records in them used by the author in his analysis, which may be useful to those seeking more in-depth information about the Supreme Court’s jurisprudence concerning the Voting Rights Act.