There are several signs that the Court intends this to be a punt. First, the statutory argument is one that that almost no one (save Greg Coleman, the lawyer who argued the case and who is now entitled to be described as a mad genius) thought was particularly tenable because of prior Court opinions. Second, while the opinion contains some rather dark hints about Section 5's future, those statements are countered by observations that supporters of the Act will plainly cite during the next go-round. Still, it's hard to read this decision and think that Section 5 is going to have an easy time of it the next time it is challenged in this Court.

What she doesn't address, though, is HOW Section 5 will come before the Court again any time soon.  As a result of today's holding - which I agree was activist in the sense that it warped statutory language in order to reach a compromise outcome - anyone who is aggrieved by Section 5 now has the right to file a "bailout suit" arguing that they ought to be exempt.  Truly innocent entities, like the utility district that brought today's case, are likely to prevail in the bailout suit.

To bring another constitutional challenge, someone will have to lose the bailout suit, lose their appeal of the factual determinations in the bailout suit (because if the appellate court finds the plaintiff was wrongfully denied the bailout, there's no need to reach the constitutional issue), and only then argue "fine, we don't meet the statutory criteria for a bailout, but those criteria are too onerous and you should just strike the whole thing down."  I predict it will be quite a while before such a challenge comes before the Court.

To bail out under the current provision, a jurisdictionmust seek a declaratory judgment from a three-judge District Court in Washington, D. C. 42 U. S. C. §§1973b(a)(1), 1973c(a). It must show that for the previ-ous 10 years it has not used any forbidden voting test, hasnot been subject to any valid objection under §5, and has not been found liable for other voting rights violations; it must also show that it has "engaged in constructive efforts to eliminate intimidation and harassment" of voters, and similar measures. §§1973b(a)(1)(A)-(F).

(Emphasis supplied.) Since voter ID laws are in fact de jure attempts to intimidate and harass voters, how do you square that circle?