by Elizabeth Wydra and David H. Gans, Constitutional Accountability Center

This Wednesday, just a week after hearing another case about government’s ability to eliminate discrimination and barriers to equality (Ricci v. DeStefano), the Supreme Court will hear oral argument in what is also likely to be one of the most significant cases of this term, Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO). In NAMUDNO, a small utility district in Texas is challenging Congress’s 2006 decision to reauthorize for 25 years the critical “pre-clearance” provision of the Voting Rights Act of 1965, one of our country’s most important civil rights laws.

The pre-clearance provision requires certain jurisdictions that have a history of engaging in racial discrimination in voting to obtain federal permission before altering their voting laws or procedures. In its appeal to the Court, the district argues that the Voting Rights Act gives it a right to “bail out” and be freed of the Act’s pre-clearance requirements. Alternatively, the district argues that Congress lacked sufficient evidence of current racial discrimination in voting to extend the pre-clearance requirement for as long as it did, and that the extension was thus unconstitutional. The lower court rejected both of the district’s claims.

Since courts prefer to resolve cases on statutory rather than constitutional grounds if they can, we certainly expect to hear questions from the Justices on Wednesday about the district’s bailout argument. But it is the district’s alternative argument – the claim that Congress exceeded its constitutional powers in extending the pre-clearance provision – that makes this case so important, and we expect that there will be hard questions from the Court to counsel on all aspects of this argument.

Much of the press coverage surrounding NAMUDNO has focused on the district’s claim that the election of Barack Obama as President proves that the Act’s pre-clearance requirement is no longer needed, and hence unconstitutional. So framed, the case pits the arguments of conservatives, who claim that racial discrimination in voting is a thing of the past, against progressives, who argue that the protections of the Voting Rights Act are still sorely needed.

This coverage of the Obama angle – however fascinating – not only ignores evidence of the continuing, substantial racial discrepancies in voting patterns between southern states widely affected by pre-clearance, and the rest of the country, during the last presidential election, but it also assumes away the critical constitutional issue presented.Under our constitutional scheme, may the Supreme Court properly hold the Voting Rights Act extension unconstitutional on the basis that the Court disagrees with Congress that the Act’s protections are no longer necessary?

Under a forthright reading of the Constitution’s text and history, that answer is no. The Reconstruction Amendments—the Thirteenth Amendment’s prohibition of slavery, the Fourteenth Amendment’s protection of equality and liberty, and the Fifteenth Amendment’s guarantee of the right to vote—each grant to Congress the power to enforce these guarantees of liberty and equality by “appropriate legislation.” These Amendments were plainly intended to provide Congress with the tools to protect fundamental rights effectively, including the right to vote unburdened by racial discrimination. Given the text and history, whether or not Congress could have made slightly different policy choices—extending the pre-clearance provisions for a shorter amount of time, for example—is not the question. The proper inquiry is whether Congress’s decision to extend the Voting Rights Act is within the broad discretion that the Reconstruction Amendments expressly gave to it.

However, a recent line of Supreme Court decisions has held that judicial review is necessary to ensure that civil rights legislation is truly enforcing constitutional guarantees, rather than creating what the Court perceives to be new constitutional rights. Beginning with the 1997 decision in City of Boerne v. Flores, the Court started applying a restrictive standard to legislation enforcing the Fourteenth Amendment’s equal protection and due process rights, demanding that Congress show a pattern of pervasive constitutional violations by the states in order to enact enforcement legislation.

Relying on these cases, the utility district argues in NAMUDNO that a similarly restrictive standard should apply to legislation enforcing the Fifteenth Amendment’s guarantee of the right to vote, and that the renewed Voting Rights Act provision is unconstitutional because Congress did not make findings of pervasive racial discrimination in voting. These cases, the district argues, demand that the Court consider whether we as a nation still need the Voting Rights Act.

NAMUDNO thus promises to be an important test of constitutional fidelity, should the Court reach the constitutional question. If it does, will the Court look to what the Constitution’s text actually provides and chip away at the limits imposed by Boerne and later cases, or will it instead extend these limits to the nearly identical language of the Enforcement Clause included in the Fifteenth Amendment?

As CAC explained in the amicus brief that we filed with the Court in this case, there is only one result consistent with the Constitution’s text and history. If the Roberts Court is to be guided by the Constitution’s text and history, NAMUDNO should be a ringing endorsement of congressional power to protect fundamental rights, including the right to vote secured by the Voting Rights Act of 1965. We’ll be watching on Wednesday to see whether the Court seems inclined to extend the unfortunate trend of restricting that enforcement power, or whether it will use this case to reverse that trend and move toward a more faithful application of constitutional text and history.

Check back here after the argument for our reaction.