With its decision in Northwest Austin Municipal Utility District Number One v. Holder, the U.S. Supreme Court sounded a warning shot across the bow of Section 5 of the Voting Rights Act. This warning shot was prompted by the “big question” raised by the “small utility district” from Texas; namely, whether the provisions of Section 5, which prevent subject jurisdictions from making any changes in election procedure without advance clearance from authorities in Washington, D.C., are unconstitutional. Although it withheld judgment on the issue by electing to employ the principle of constitutional avoidance, the Court made clear that the preclearance requirements under Section 5 implicated significant constitutional concerns, noting in particular the “federalism costs” of Section 5 and the scope of the Fifteenth Amendment.

In Northwest Austin, the Supreme Court avoided ruling on the constitutionality of Section 5 of the Voting Rights Act by providing relief under Section 4 and granting the Northwest Austin Municipal Utility District the ability, as a political subdivision, to bail out of the preclearance requirements of Section 5. While this approach disposed of the case, Chief Justice Roberts’s opinion went through considerable pains to comment upon the current status of the Voting Rights Act, as renewed in 2006. In its decision, the Court recited an impressive list of the “undeniable” accomplishments of the Act, which was only surpassed by the number of issues which gave the Court concern. These concerns, which focus upon issues of federalism and the scope of the Fifteenth Amendment, appear to provide the Court with the impetus to do something unprecedented: invalidate a key provision of the Voting Rights Act.