On April 29, the U.S. Supreme Court heard oral arguments in Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Holder, a case in which a small utility district in Texas is challenging Section 5 of the Voting Rights Act of 1965. Section 5 was reauthorized in 2006 and applies to all or part of 16 states, including nine states in their entirety. It requires those states to seek federal approval before changing election rules or procedures due to past laws and practices that discriminated against and disenfranchised racial minorities.

NAMUDNO argued that under Section 5, it can "bail out" of the approval provision, known as "preclearance." NAMUDNO further argued that even if it could not get out from under the provision, Congress' extension of preclearance was unconstitutional because Congress did not have adequate evidence that an extension was necessary.

The high court spent considerable time on the evidence and constitutionality Congress used to support its decision to reauthorize Section 5 in 2006. Justice Stephen Breyer elaborated on the evidence, noting that the act has served as a deterrent to voting discrimination and that thousands of discriminatory election changes have been prevented as a result of Section 5.

Justices Samuel Alito, Antonin Scalia, and Anthony Kennedy seemed to be bothered that some states are subjected to preclearance when others are not. Their questions focused on the supposed inequality of requiring preclearance for some states and not for others.

Kennedy stated that Congress has found that the sovereignty of one state is less than another. "The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments in another," he said. Kennedy later added that due to Section 5 preclearance, "a minority opportunity district is protected in covered jurisdictions and not in non-covered jurisdictions."

The arguments and the evidence from the Congressional Record supporting preclearance were not enough to sway the course of the justices' questions. Alito, Scalia, and Kennedy, in particular, questioned why Congress did not compare the states that are covered by the preclearance provision to the states that are not covered by the provision to show that the covered states are more likely to discriminate.

"Whether Congress could have written a different or even better Voting Rights Act in 2006—making pre-clearance voluntary for the entire nation (as suggested by Justice Scalia) or extending pre-clearance requirements to jurisdictions not previously covered (as Justices Alito and Kennedy seemed to find intriguing)—is thus the wrong inquiry," said Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, in a blog post. "Here, Congress held 21 hearings, interviewed more than 90 witnesses, amassed a 15,000 page record, and found that jurisdictions required to pre-clear had engaged in thousands of discriminatory electoral practices between 1982 and 2006," Wydra said.

While a decision in this case is not expected until June, oral arguments indicate that Section 5 is receiving considerable attention. Prior to oral arguments, it appeared that Justice Kennedy would be the swing vote. It is assumed that the high court’s conservative block of Alito, Roberts, Scalia, and Thomas will vote to strike down Section 5. Justices Souter, Ginsburg, and Breyer seem poised to uphold it. Stevens did not say much during oral arguments, making it difficult to anticipate even a cursory view of his potential vote.