Nearly four years ago in a Texas voting rights case, the Supreme Court found a narrow way to avoid a decision on the constitutionality of a critical part of the Voting Rights Act. After arguments last week in an Alabama case, not only is that unlikely to happen again, but the act is likely to suffer a major blow, say a number of election law scholars.

There is a real danger that the justices will strike down the act’s preclearance requirement and/or its formula determining which jurisdictions must submit their voting changes for preclearance, said one scholar, and that they will leave Congress with little power to address civil rights issues going forward.

Despite almost universal pessimism about the outcome in Shelby County, Ala. v. Holder, "I think there’s always a way out," said Richard Hasen of the University of California Irvine School of Law. "I think Northwest Austin illustrates if there is the political will to avoid striking down the Voting Rights Act, the court can do it. The eight members of the court engaged in a completely ingenious statutory interpretation the last time around to avoid the constitutional question."

Hasen was referring to the 2009 decision in Northwest Austin Municipal Utility District No. 1 v. Holder in which eight justices held that the utility district could apply to "bail out" of Section 5 preclearance coverage. The entire state of Texas is a covered jurisdiction under the Voting Rights Act.

"They held the district was entitled to apply for bail out even though the statute was crystal clear and the legislative history too that bail out was only available to jurisdictions that administered voting, which this district did not," explained Hasen.

However, Hasen and others suggested the court could stop short of delivering the worst blow to the act by taking a path suggested in argument comments by justices Sonia Sotomayor and Elena Kagan and briefly picked up by Justice Anthony Kennedy, who may well hold the key to the outcome.

While questioning Shelby County’s counsel, Bert Rein of Wiley Rein, Sotomayor said, "Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t." She noted that numerous discriminatory voting practices had been blocked by Section 5 objections during the period examined by Congress when it reauthorized the act in 2006.

"You may be the wrong party bringing this," she added. (Shelby County has brought a facial challenge to the act, meaning that it is arguing that there can be no constitutional application of the act.)

Kagan subsequently told Rein that under any coverage formula that Congress could devise, "it would capture Alabama." Picking up on that thread, Kennedy asked Rein why Shelby County is injured under the current formula.

"The only thing that seems possible to me would be that a majority would decide these questions should be decided on [an] as-applied rather than a facial basis," said Richard Pildes of New York University School of Law. "I suppose they would then have to remand it for views of what is the situation in Shelby County. That would seem the most obvious way to a narrowing decision."

Hasen agreed, saying a decision could invite other covered states to bring their own as-applied constitutional challenges. But, he added, "That would be a messy way to do things," and may not satisfy Kennedy’s concerns about the "equal sovereignty" of the states and the federal government’s continuation as "trustee" of those covered states.

Joseph Fishkin of the University of Texas School of Law said the as-applied approach, although a legitimate option, "seems like something in a crazy scenario in which a deal gets brokered and you have [Justice Stephen] Breyer writing."

Pildes, too, sees difficulty with an as-applied approach in the Shelby County case.

"The complaint of places like Shelby County is: ‘There is no justification for covering us but not other areas with similar [voting] patterns,’" he explained.

The court also could strike down part of the act’s bail-out provisions to make bail out very easy, said Nathaniel Persily of Columbia Law School. "If the court is concerned there are too many innocent victims covered, then bail out is the option," he said. "That would deal with the court’s concerns about overinclusiveness. But that’s not really necessary because bail out has happened quite often in the last four years. That’s been the trend. The majority of jurisdictions covered are overwhelmingly white. Almost all could bail out if they asked, but the truth is Section 5 doesn’t really affect you much."

If the court is inclined to uphold the challenged parts of the act, there is a way to distinguish the covered jurisdictions from the uncovered ones, noted Persily. There is statistical evidence that the covered jurisdictions were more racially polarized in their voting patterns eight years ago, even 12 years ago, than in uncovered jurisdictions.

And, Hasen said, "While the [coverage] formula is somewhat outdated, it does continue to cover jurisdictions that have a worse record on voting rights. That was essentially what the lower court said. I don’t think the court is going to do that. None of the conservative justices [during the Shelby County arguments] seemed to have the appetite to save this statute again."

Marcia Coyle can be contacted at mcoyle@alm.com.