Future Prospects of Section 5 of the Voting Rights Act

by John Parker // Published June 23, 2009

In Monday's Supreme Court ruling of Northwest Austin Municipal Utility District Number One v. Holder (NAMUNDO) concerning the bailout provision (Section 4) of the Voting Rights Act and the constitutionality of Section 5 in general, the Supreme Court in a 8-1 ruling, allowed for a local municipal district in Texas to bailout from Section 5 coverage. However, the court did not resolve the issue of the constitutionality of Section 5. Chief Justice John Roberts, writing for the majority, stated that the constitutionality of the case was a "difficult constitutional question we do not answer today". The lone dissenter, Justice Clarence Thomas, argued that the court should have addressed the constitutionality of Section 5 and that if it were up to him, he would have ruled "that Section 5 exceed(ed) Congress' power to enforce the Fifteenth Amendment".

The nearly unanimous ruling may come off as a surprise to some advocates of the voting rights and civil rights communities as the line of questioning during the oral arguments from the Justices gave the perception that Section 5 may be ruled unconstitutional or narrowly structured to weaken the law. As noted in another blog, the Supreme Court over the last two decades has limited the ability for racial minorities to increase representation from members of their ethnic group in state legislatures and Congress. However, since the Supreme Court managed to sidestep the question of whether or not Section 5 is constitutional, it may be too soon to claim the NAMUDNO case a victory for civil rights and voting rights advocates.

With the constitutionality of Section 5 not yet determined, this leaves room for a potential challenge from other local jurisdictions seeking bailout. In the meantime, as John Roberts noted, Congress may need to enact new legislation that would allow for political subunits that do not register voters to seek bailout from Section 5 coverage.