A federal appellate court recently struck down Texas’ proposed Congressional redistricting plan, finding that the plan violated Section 5. Might the court’s opinion in that case provide the impetus for the Supreme Court to strike down Section 5 once and for all? That is what Nicholas Stephanopolous suggests in a recent post at The New Republic:
So minorities and Democrats should be dancing in the streets after the court’s decision, right? For now, yes, but an unhappy ending may still be in store for them. The reason is that the revised Section 5 currently sits on very thin constitutional ice. Three years ago, the Supreme Court declared ominously that the provision “imposes substantial federalism costs” and “raise[s] serious constitutional questions.” The Court found a loophole then that allowed it to avoid answering these questions, but there will be no analogous escape hatch when the next Section 5 cases reach the Justices, most likely in 2013.
Moreover, the three-judge court’s decision probably makes it more likely that the Court will strike down the provision. The more aggressively Section 5 is construed, the more it restricts the autonomy of covered jurisdictions, and the higher are the “federalism costs” that it imposes. States have more to complain about, in other words, if “ability to elect” and “any discriminatory purpose” are defined in particularly broad terms. In addition, when the Court last confronted the provision, it did not yet know what consequences its amendments would have for minority groups or for political parties. But now the Court knows quite a bit more, and what it’s learning—that the revised Section 5 benefits minorities and Democrats relative to the pre-2006 status quo—is unlikely to be received favorably.