Thursday, June 25, 2009

Northwestern Austin Mun. Util. Dist. v. Holder OPINION

573 F. Supp. 2d 221, reversed and remanded. Syllabus


Chief Justice Roberts, Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


on appeal from the united states district court for the district of columbia


[June 22, 2009]


Chief Justice Roberts delivered the opinion of the Court.

The plaintiff in this case is a small utility district raising a big question—the constitutionality of §5 of the Voting Rights Act. The district has an elected board, and is required by §5 to seek preclearance from federal authorities in Washington, D. C., before it can change anything about those elections. This is required even though there has never been any evidence of racial discrimination in voting in the district.

The district filed suit seeking relief from these preclearance obligations under the “bailout” provision of the Voting Rights Act. That provision allows the release of a “political subdivision” from the preclearance requirements if certain rigorous conditions are met. The court below denied relief, concluding that bailout was unavailable to a political subdivision like the utility district that did not register its own voters. The district appealed, arguing that the Act imposes no such limitation on bailout, and that if it does, the preclearance requirements are unconstitutional.

That constitutional question has attracted ardent briefs from dozens of interested parties, but the importance of the question does not justify our rushing to decide it. Quite the contrary: Our usual practice is to avoid the unnecessary resolution of constitutional questions. We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of §5.



The Fifteenth Amendment promises that the “right of citizens of the United States to vote shall not be denied or abridged … on account of race, color, or previous condition of servitude.” U. S. Const., Amdt. 15, §1. In addition to that self-executing right, the Amendment also gives Congress the “power to enforce this article by appropriate legislation.” §2. The first century of congressional enforcement of the Amendment, however, can only be regarded as a failure. Early enforcement Acts were inconsistently applied and repealed with the rise of Jim Crow. South Carolina v. Katzenbach, 383 U. S. 301, 310 (1966) ; A. Keyssar, The Right to Vote 105–111 (2000). Another series of enforcement statutes in the 1950s and 1960s depended on individual lawsuits filed by the Department of Justice. But litigation is slow and expensive, and the States were creative in “contriving new rules” to continue violating the Fifteenth Amendment “in the face of adverse federal court decrees.” Katzenbach, supra, at 335; Riley v. Kennedy, 553 U. S. ___, ___ (2008) (slip op., at 2).

Congress responded with the Voting Rights Act. Section 2 of the Act operates nationwide; as it exists today, that provision forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” 42 U. S. C. §1973(a). Section 2 is not at issue in this case.

The remainder of the Act constitutes a “scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant.” Katzenbach, supra, at 315. Rather than continuing to depend on case-by-case litigation, the Act directly pre-empted the most powerful tools of black disenfranchisement in the covered areas. All literacy tests and similar voting qualifications were abolished by §4 of the Act. Voting Rights Act of 1965, §§4(a)–(d), 79 Stat. 438–439. Although such tests may have been facially neutral, they were easily manipulated to keep blacks from voting. The Act also empowered federal examiners to override state determinations about who was eligible to vote. §§ 6, 7, 9, 13, id., at 439–442, 444–445.

These two remedies were bolstered by §5, which suspended all changes in state election procedure until they were submitted to and approved by a three-judge Federal District Court in Washington, D. C., or the Attorney General. Id., at 439, codified as amended at 42 U. S. C. §1973c(a). Such preclearance is granted only if the change neither “has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” Ibid. We have interpreted the requirements of §5 to apply not only to the ballot-access rights guaranteed by §4, but to drawing district lines as well. Allen v. State Bd. of Elections, 393 U. S. 544, 564–565 (1969) .

To confine these remedies to areas of flagrant disenfranchisement, the Act applied them only to States that had used a forbidden test or device in November 1964, and had less than 50% voter registration or turnout in the 1964 Presidential election. §4(b), 79 Stat. 438. Congress recognized that the coverage formula it had adopted “might bring within its sweep governmental units not guilty of any unlawful discriminatory voting practices.” Briscoe v. Bell, 432 U. S. 404, 411 (1977) . It therefore “afforded such jurisdictions immediately available protection in the form of … [a] ‘bailout’ suit.” Ibid.

To bail out under the current provision, a jurisdiction must seek a declaratory judgment from a three-judge District Court in Washington, D. C. 42 U. S. C. §§1973b(a)(1). It must show that for the previous 10 years it has not used any forbidden voting test, has not 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). The Attorney General can consent to entry of judgment in favor of bailout if the evidence warrants it, though other interested parties are allowed to intervene in the declaratory judgment action. §1973b(a)(9). There are other restrictions: To bail out, a covered jurisdiction must show that every jurisdiction in its territory has complied with all of these requirements. §1973b(a)(3). The District Court also retains continuing jurisdiction over a successful bailout suit for 10 years, and may reinstate coverage if any violation is found. §1973b(a)(5).

As enacted, §§4 and 5 of the Voting Rights Act were temporary provisions. They were expected to be in effect for only five years. §4(a), 79 Stat. 438. We upheld the temporary Voting Rights Act of 1965 as an appropriate exercise of congressional power in Katzenbach, explaining that “[t]he constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects.” 383 U. S., at 308. We concluded that the problems Congress faced when it passed the Act were so dire that “exceptional conditions [could] justify legislative measures not otherwise appropriate.” Id., at 334–335 (citing Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 (1934) , and Wilson v. New, 243 U. S. 332 (1917) ).

Congress reauthorized the Act in 1970 (for 5 years), 1975 (for 7 years), and 1982 (for 25 years). The coverage formula remained the same, based on the use of voting-eligibility tests and the rate of registration and turnout among all voters, but the pertinent dates for assessing these criteria moved from 1964 to include 1968 and eventually 1972. 42 U. S. C. §1973b(b). We upheld each of these reauthorizations against constitutional challenges, finding that circumstances continued to justify the provisions. Georgia v. United States, 411 U. S. 526 (1973) ; City of Rome v. United States, 446 U. S. 156 (1980) ; Lopez v. Monterey County, 525 U. S. 266 (1999) . Most recently, in 2006, Congress extended §5 for yet another 25 years. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, 120 Stat. 577. The 2006 Act retained 1972 as the last baseline year for triggering coverage under §5. It is that latest extension that is now before us.


Northwest Austin Municipal Utility District Number One was created in 1987 to deliver city services to residents of a portion of Travis County, Texas. It is governed by a board of five members, elected to staggered terms of four years. The district does not register voters but is responsible for its own elections; for administrative reasons, those elections are run by Travis County. Because the district is located in Texas, it is subject to the obligations of §5, although there is no evidence that it has ever discriminated on the basis of race.

The district filed suit in the District Court for the District of Columbia, seeking relief under the statute’s bailout provisions and arguing in the alternative that, if interpreted to render the district ineligible for bailout, §5 was unconstitutional. The three-judge District Court rejected both claims. Under the statute, only a “State or political subdivision” is permitted to seek bailout, 42 U. S. C. §1973b(a)(1)(A), and the court concluded that the district was not a political subdivision because that term includes only “counties, parishes, and voter-registering subunits,” Northwest Austin Municipal Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 232 (2008). Turning to the district’s constitutional challenge, the court concluded that the 25-year extension of §5 was constitutional both because “Congress … rationally concluded that extending [§]5 was necessary to protect minorities from continued racial discrimination in voting” and because “the 2006 Amendment qualifies as a congruent and proportional response to the continuing problem of racial discrimination in voting.” Id., at 283. We noted probable jurisdiction, 555 U. S. ___ (2009), and now reverse.


The historic accomplishments of the Voting Rights Act are undeniable. When it was first passed, unconstitutional discrimination was rampant and the “registration of voting-age whites ran roughly 50 percentage points or more ahead” of black registration in many covered States. Katzenbach, supra, at 313; H. R. Rep. No. 109–478, p. 12 (2006). Today, the registration gap between white and black voters is in single digits in the covered States; in some of those States, blacks now register and vote at higher rates than whites. Id., at 12–13. Similar dramatic improvements have occurred for other racial minorities. Id., at 18–20. “[M]any of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [Voting Rights Act] have been eliminated.” Id., at 12; Bartlett v. Strickland, 556 U. S. 1 , ___ (2009) (slip op., at 5) (plurality opinion) (“Passage of the Voting Rights Act of 1965 was an important step in the struggle to end discriminatory treatment of minorities who seek to exercise one of the most fundamental rights of our citizens: the right to vote”).

At the same time, §5, “which authorizes federal intrusion into sensitive areas of state and local policymaking, imposes substantial ‘federalism costs.’ ” Lopez, supra,at 282 (quoting Miller v. Johnson, 515 U. S. 900, 926 (1995) ). These federalism costs have caused Members of this Court to express serious misgivings about the constitutionality of §5. Katzenbach, 383 U. S., at 358–362 (Black, J., concurring and dissenting); Allen, 393 U. S., at 586, n. 4 (Harlan, J., concurring in part and dissenting in part); Georgia, supra, at 545 (Powell, J., dissenting); City of Rome, 446 U. S., at 209–221 (Rehnquist, J., dissenting); id., at 200–206 (Powell, J., dissenting); Lopez, 525 U. S., at 293–298 (Thomas, J., dissenting); id., at 288 (Kennedy, J., concurring in judgment).

Section 5 goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C. The preclearance requirement applies broadly, NAACP v. Hampton County Election Comm’n, 470 U. S. 166, 175–176 (1985) , and in particular to every political subdivision in a covered State, no matter how small, United States v. Sheffield Bd. of Comm’rs, 435 U. S. 110, 117–118 (1978) .

Some of the conditions that we relied upon in upholding this statutory scheme in Katzenbach and City of Rome have unquestionably improved. Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. See generally H. R. Rep. No. 109–478, at 12–18.

These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements. See Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success? 104 Colum. L. Rev. 1710 (2004). It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.

The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” United States v. Louisiana, 363 U. S. 1, 16 (1960) (citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see also Texas v. White, 7 Wall. 700, 725–726 (1869). Distinctions can be justified in some cases. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.” Katzenbach, supra, at 328–329 (emphasis added). But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.

These federalism concerns are underscored by the argument that the preclearance requirements in one State would be unconstitutional in another. See Georgia v. Ashcroft, 539 U. S. 461, 491–492 (2003) (Kennedy, J., concurring) (“Race cannot be the predominant factor in redistricting under our decision in Miller v. Johnson, 515 U. S. 900 (1995) . Yet considerations of race that would doom a redistricting plan under the Fourteenth Amendment or §2 seem to be what save it under §5”). Additional constitutional concerns are raised in saying that this tension between §§2 and 5 must persist in covered jurisdictions and not elsewhere.

The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide. E. Blum & L. Campbell, Assessment of Voting Rights Progress in Jurisdictions Covered Under Section Five of the Voting Rights Act 3–6 (American Enterprise Institute, 2006). Congress heard warnings from supporters of extending §5 that the evidence in the record did not address “systematic differences between the covered and the non-covered areas of the United States[,] … and, in fact, the evidence that is in the record suggests that there is more similarity than difference.” The Continuing Need for Section 5 Pre-Clearance: Hearing before the Senate Committee on the Judiciary, 109th Cong., 2d Sess., 10 (2006) (statement of Richard H. Pildes); see also Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L. J. 174, 208 (2007) (“The most one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would … disrupt settled expectations”).

The parties do not agree on the standard to apply in deciding whether, in light of the foregoing concerns, Congress exceeded its Fifteenth Amendment enforcement power in extending the preclearance requirements. The district argues that “ ‘[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,’ ” Brief for Appellant 31, quoting City of Boerne v. Flores, 521 U. S. 507, 520 (1997) ; the Federal Government asserts that it is enough that the legislation be a “ ‘rational means to effectuate the constitutional prohibition,’ ” Brief for Federal Appellee 6, quoting Katzenbach, supra, at 324. That question has been extensively briefed in this case, but we need not resolve it. The Act’s preclearance requirements and its coverage formula raise serious constitutional questions under either test.

In assessing those questions, we are keenly mindful of our institutional role. We fully appreciate that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 147–148 (1927) (Holmes, J., concurring). “The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U. S. 57, 64 (1981) . The Fifteenth Amendment empowers “Congress,” not the Court, to determine in the first instance what legislation is needed to enforce it. Congress amassed a sizable record in support of its decision to extend the preclearance requirements, a record the District Court determined “document[ed] contemporary racial discrimination in covered states.” 573 F. Supp. 2d, at 265. The District Court also found that the record “demonstrat[ed] that section 5 prevents discriminatory voting changes” by “quietly but effectively deterring discriminatory changes.” Id., at 264.

We will not shrink from our duty “as the bulwar[k] of a limited constitution against legislative encroachments,” The Federalist No. 78, p. 526 (J. Cooke ed. 1961) (A. Hamilton), but “[i]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,” Escambia County v. McMillan, 466 U. S. 48, 51 (1984) (per curiam). Here, the district also raises a statutory claim that it is eligible to bail out under §§4 and 5. Justice Thomas argues that the principle of constitutional avoidance has no pertinence here. He contends that even if we resolve the district’s statutory argument in its favor, we would still have to reach the constitutional question, because the district’s statutory argument would not afford it all the relief it seeks. Post, at 1–3 (opinion concurring in judgment in part and dissenting in part).

We disagree. The district expressly describes its constitutional challenge to §5 as being “in the alternative” to its statutory argument. See Brief for Appellant 64 (“[T]he Court should reverse the judgment of the district court and render judgment that the district is entitled to use the bailout procedure or, in the alternative, that §5 cannot be constitutionally applied to the district”). The district’s counsel confirmed this at oral argument. See Tr. of Oral Arg. 14 (“[Question:] [D]o you acknowledge that if we find in your favor on the bailout point we need not reach the constitutional point? [Answer:] I do acknowledge that”). We therefore turn to the district’s statutory argument.


Section 4(b) of the Voting Rights Act authorizes a bailout suit by a “State or political subdivision.” 42 U. S. C. §1973b(a)(1)(A). There is no dispute that the district is a political subdivision of the State of Texas in the ordinary sense of the term. See, e.g., Black’s Law Dictionary 1197 (8th ed. 2004) (“A division of a state that exists primarily to discharge some function of local government”). The district was created under Texas law with “powers of government” relating to local utilities and natural resources. Tex. Const., Art. XVI, §59(b); Tex. Water Code Ann. §54.011 (West 2002); see also Bennett v. Brown Cty. Water Improvement Dist. No. 1, 272 S. W. 2d 498, 500 (Tex. 1954) (“[W]ater improvement district[s] … are held to be political subdivisions of the State” (internal quotation marks omitted)).

The Act, however, also provides a narrower statutory definition in §14(c)(2): “ ‘[P]olitical subdivision’ shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.” 42 U. S. C. §1973l(c)(2). The District Court concluded that this definition applied to the bailout provision in §4(a), and that the district did not qualify, since it is not a county or parish and does not conduct its own voter registration.

“Statutory definitions control the meaning of statutory words, of course, in the usual case. But this is an unusual case.” Lawson v. Suwannee Fruit & S. S. Co., 336 U. S. 198, 201 (1949) ; see also Farmers Reservoir & Irrigation Co. v. McComb, 337 U. S. 755, 764 (1949) ; Philko Aviation, Inc. v. Shacket, 462 U. S. 406, 412 (1983) . Were the scope of §4(a) considered in isolation from the rest of the statute and our prior cases, the District Court’s approach might well be correct. But here specific precedent, the structure of the Voting Rights Act, and underlying constitutional concerns compel a broader reading of the bailout provision.

Importantly, we do not write on a blank slate. Our decisions have already established that the statutory definition in §14(c)(2) does not apply to every use of the term “political subdivision” in the Act. We have, for example, concluded that the definition does not apply to the preclearance obligation of §5. According to its text, §5 applies only “[w]henever a [covered] State or political subdivision” enacts or administers a new voting practice. Yet in Sheffield Bd. of Comm’rs, 435 U. S. 110 , we rejected the argument by a Texas city that it was neither a State nor a political subdivision as defined in the Act, and therefore did not need to seek preclearance of a voting change. The dissent agreed with the city, pointing out that the city did not meet the statutory definition of “political subdivision” and therefore could not be covered. Id., at 141–144 (opinion of Stevens, J.). The majority, however, relying on the purpose and structure of the Act, concluded that the “definition was intended to operate only for purposes of determining which political units in nondesignated States may be separately designated for coverage under §4(b).” Id., at 128–129; see also id., at 130, n. 18 (“Congress’s exclusive objective in §14(c)(2) was to limit the jurisdictions which may be separately designated for coverage under §4(b)”).

We reaffirmed this restricted scope of the statutory definition the next Term in Dougherty County Bd. of Ed. v. White, 439 U. S. 32 (1978) . There, a school board argued that because “it d[id] not meet the definition” of political subdivision in §14(c)(2), it “d[id] not come within the purview of §5.” Id., at 43, 44. We responded:

“This contention is squarely foreclosed by our decision last Term in [Sheffield]. There, we expressly rejected the suggestion that the city of Sheffield was beyond the ambit of §5 because it did not itself register voters and hence was not a political subdivision as the term is defined in §14(c)(2) of the Act. … [O]nce a State has been designated for coverage, §14(c)(2)’s definition of political subdivision has no operative significance in determining the reach of §5.” Id., at 44 (internal quotation marks omitted).

According to these decisions, then, the statutory definition of “political subdivision” in §14(c)(2) does not apply to every use of the term “political subdivision” in the Act. Even the intervenors who oppose the district’s bailout concede, for example, that the definition should not apply to §2, which bans racial discrimination in voting by “any State or political subdivision,” 42 U. S. C. §1973(a). See Brief for Intervenor-Appellee Texas State Conference of NAACP Branches et al. 17 (citing Smith v. Salt River Project Agricultural Improvement and Power Dist., 109 F. 3d 586, 592–593 (CA9 1997)); see also United States v. Uvalde Consol. Independent School Dist., 625 F. 2d 547, 554 (CA5 1980) (“[T]he Supreme Court has held that this definition [in §14(c)(2)] limits the meaning of the phrase ‘State or political subdivision’ only when it appears in certain parts of the Act, and that it does not confine the phrase as used elsewhere in the Act”). In light of our holdings that the statutory definition does not constrict the scope of preclearance required by §5, the district argues, it only stands to reason that the definition should not constrict the availability of bailout from those preclearance requirements either.

The Government responds that any such argument is foreclosed by our interpretation of the statute in City of Rome, 446 U. S. 156 . There, it argues, we made clear that the discussion of political subdivisions in Sheffield was dictum, and “specifically held that a ‘city is not a “political subdivision” for purposes of §4(a) bailout.’ ” Brief for Federal Appellee 14 (quoting City of Rome, supra, at 168).

Even if that is what City of Rome held, the premises of its statutory holding did not survive later changes in the law. In City of Rome we rejected the city’s attempt to bail out from coverage under §5, concluding that “political units of a covered jurisdiction cannot independently bring a §4(a) bailout action.” 446 U. S., at 167. We concluded that the statute as then written authorized a bailout suit only by a “State” subject to the coverage formula, or a “political subdivision with respect to which [coverage] determinations have been made as a separate unit,” id., at 164, n. 2 (quoting 42 U. S. C. §1973b(a) (1976 ed.)); see also 446 U. S., at 163–169. Political subdivisions covered because they were part of a covered State, rather than because of separate coverage determinations, could not separately bail out. As Justice Stevens put it, “[t]he political subdivisions of a covered State” were “not entitled to bail out in a piecemeal fashion.” Id., at 192 (concurring opinion).

In 1982, however, Congress expressly repudiated City of Rome and instead embraced “piecemeal” bailout. As part of an overhaul of the bailout provision, Congress amended the Voting Rights Act to expressly provide that bailout was also available to “political subdivisions” in a covered State, “though [coverage] determinations were not made with respect to such subdivision as a separate unit.” Voting Rights Act Amendments of 1982, 96 Stat. 131, codified at 42 U. S. C. §1973b(a)(1) (emphasis added). In other words, Congress decided that a jurisdiction covered because it was within a covered State need not remain covered for as long as the State did. If the subdivision met the bailout requirements, it could bail out, even if the State could not. In light of these amendments, our logic for denying bailout in City of Rome is no longer applicable to the Voting Rights Act—if anything, that logic compels the opposite conclusion.

Bailout and preclearance under §5 are now governed by a principle of symmetry. “Given the Court’s decision in Sheffield that all political units in a covered State are to be treated for §5 purposes as though they were ‘political subdivisions’ of that State, it follows that they should also be treated as such for purposes of §4(a)’s bailout provisions.” City of Rome, supra, at 192 (Stevens, J., concurring).

The Government contends that this reading of Sheffield is mistaken, and that the district is subject to §5 under our decision in Sheffield not because it is a “political subdivision” but because it is a “State.” That would mean it could bail out only if the whole State could bail out.

The assertion that the district is a State is at least counterintuitive. We acknowledge, however, that there has been much confusion over why Sheffield held the city in that case to be covered by the text of §5. See City of Rome, 446 U. S., at 168–169; id., at 192 (Stevens, J., concurring); see also Uvalde Consol. Independent School Dist. v. United States, 451 U. S. 1002 , n. 4 (1981) (Rehnquist, J., dissenting from denial of certiorari) (“[T]his Court has not yet settled on the proper construction of the term ‘political subdivision’ ”).

But after the 1982 amendments, the Government’s position is untenable. If the district is considered the State, and therefore necessarily subject to preclearance so long as Texas is covered, then the same must be true of all other subdivisions of the State, including counties. That would render even counties unable to seek bailout so long as their State was covered. But that is the very restriction the 1982 amendments overturned. Nobody denies that counties in a covered State can seek bailout, as several of them have. See Voting Rights Act: Section 5 of the Act—History, Scope, and Purpose: Hearing Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., 2599–2834 (2005) (detailing bailouts). Because such piecemeal bailout is now permitted, it cannot be true that §5 treats every governmental unit as the State itself.

The Government’s contrary interpretation has helped to render the bailout provision all but a nullity. Since 1982, only 17 jurisdictions—out of the more than 12,000 covered political subdivisions—have successfully bailed out of the Act. App. to Brief for Jurisdictions That Have Bailed Out as Amici Curiae 3; Dept. of Commerce, Bureau of Census, 2002 Census of Governments, Vol. 1, No. 1, pp. 1, 22–60. It is unlikely that Congress intended the provision to have such limited effect. See United States v. Hayes, 555 U. S. ___, ____ (2009) (slip op., at 10).

We therefore hold that all political subdivisions—not only those described in §14(c)(2)—are eligible to file a bailout suit.

*  *  *

More than 40 years ago, this Court concluded that “exceptional conditions” prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. Katzenbach, 383 U. S., at 334. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today. We conclude instead that the Voting Rights Act permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements.

The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Wednesday, June 24, 2009

Reaction to Supreme Court's Voting Rights Act Decision

Voting Rights, Afterthoughts

The Atlantic
Jun 23 2009, 5:25 pm
by Matthew Cooper

My old colleague and friend, Abigail Thernstrom, makes the case against minority-majority districts in the National Review. The Nation reverts to paleoliberal stereotype in its piece on the Supreme Court's temperate 8-1 decision on an Austin, Texas utility district. The New York Times is also worried. Please. Does the Times believe that Steven Breyer, Ruth Bader Ginsburg, John Paul Stevens and David Souter have taken a crazy shift to the right? The decision seemed decidedly temperate, to me anyway. Section 5 of the Voting Rights Act is a serious infringement on local power and prerogatives but rightfully so given the country's history of racial discrimination. The question of whether it remains constitutional is a serious one. For the left and right, it seems like a no brainer but the Court seems to be taking a centrist position that this is a tough question without an easy answer. I found that pretty reassuring even if, I think, there's a coming showdown over this issue that won't be so temperate.

On the question of minority-majority districts, Thernstrom makes an important point about their not encouraging a centrist integrationist politics. But the answer is more subtle, I think, than she suggests. Harold Ford, Jr., the former Tennessee congressman, came out of the majority-minority district in Memphis that once elected his father. Surely, his politics are Obamaesque. And the fact that he was succeeded by a white Democrat suggests more racial fluidity in these kinds of districts than people, including me, might have thought a few years ago. Artur Davis is going to run an Obama-style candidacy for governor in Alabama, for instance, coming out of a minority-majority district. Kendrick Meek is going to seek the Senate seat being vacated by Mel Martinez in Florida. Districts like these seems to be yielding fewer Cynthia McKinneys. The Supreme Court's opinion this week was mild and evasive, which is why eight justices signed on to it. But it could also be seen as the work of a body that's thoughtful, engaged, and tuned into the subtleties of American life.

Voting Rights Act Upheld, But Court Hints at Change

By Robert Barnes
Washington Post Staff Writer
Tuesday, June 23, 2009

A key part of the landmark Voting Rights Act survived a constitutional challenge yesterday in the Supreme Court, but justices made it clear that a law forged in the darkest days of the nation's civil rights struggles may no longer be appropriate in a new era of American racial politics.

A surprisingly unified court found a compromise that allowed it to sidestep questions about whether the key provision of the law is constitutional, thus avoiding a divisive showdown with Congress, which just three years ago found that the 1965 act was still needed. But the opinion by Chief Justice John G. Roberts Jr., joined by the court's liberal members, raised doubts about whether the law's restrictions would survive a future challenge.

Civil rights activists, braced for a defeat from a court increasingly skeptical of race-based government policies, said the outcome was the best they could have hoped for. But conservatives, who had questioned the need for the requirements in a country that just elected its first African American president, found reason for hope in the court's blunt questioning of whether Congress had made the case for its extension of the law.

Experts said the key provision of the law appeared to have received more of a stay of execution than a reprieve.

"I tend to think the Voting Rights Act is living on borrowed time," said Nathaniel Persily, a Columbia University law professor whose work was cited in the opinion.

Justice Ruth Bader Ginsburg had earlier called the case "perhaps the most important of the term," and the court's 8 to 1 decision for now leaves in place the heart of the act: the Section 5 provision that requires federal approval for any changes in election laws or redistricting decisions in nine states, mostly in the South, and parts of seven others. That provision was deemed necessary in the original act to combat discrimination in those states and what was at the time a steadfast resistance to minority voting rights.

Supporters of the law noted that the decision means the provisions probably will be in place to guide the electoral redistricting plans required by the 2010 census.

"It's fair to say this case was brought to tear the heart out of the Voting Rights Act, and today that effort failed," said Debo Adegbile, lead attorney for the NAACP Legal Defense and Educational Fund.

The court said Congress's actions in extending Section 5 "raise serious constitutional questions," but Roberts wrote that "the importance of the question does not justify our rushing to decide it." Instead, the court made it clear that all political subdivisions covered by the act were free to make the case to federal officials for an exemption.

So far, only 17 subdivisions of the 12,000 covered by the act -- all of them in Virginia, including Fairfax City -- have "bailed out" of Section 5's restrictive provisions.

The nearly unanimous decision -- only Justice Clarence Thomas, the court's lone African American, found the provision unconstitutional -- masked the court's deep divisions about the act. During oral arguments, the court's conservative majority was openly critical of the requirements and sharply questioned whether some states were being treated differently because of past discrimination rather than current conditions.

When Congress reauthorized the law in 2006, it retained the Section 5 restrictions on the same states -- Virginia, Alaska, Alabama, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas and parts of seven others -- without an examination of whether some should be removed or others added.

"The South has changed," Roberts wrote in what some experts interpreted as a warning to Congress. "The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions."

Thomas said that was reason enough to find the provision unconstitutional. "The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains," Thomas wrote. Neither the opinion nor the dissent mentioned President Obama's election.

Roberts said that finding an act of Congress unconstitutional is the "most delicate" task the justices have and that there was no reason to do so now. The court instead said the municipal utility district in Austin that had served as the test case was eligible to apply for a bailout, something a lower court had said the law did not allow.

The decision seemed in tune with Roberts's stated goal of deciding cases as narrowly as possible and avoiding what probably would have been another divisive ruling for the court on an important constitutional issue.

Persily called it "an example of real statesmanship by Chief Justice Roberts." Another expert on election law, Richard Hasen of Loyola Law School in Los Angeles, said the chief justice "blinked" after his long-standing criticism of the law and other government policies on race.

Ellen Katz, a University of Michigan law professor, said the court may have decided that after the way the Voting Rights Act revolutionized minority voter participation in America, "its fate ought not be the Supreme Court striking it down."

The Voting Rights Act Survives

The New York Times

Published June 22, 2009

The Supreme Court decided on Monday not to strike down Section 5 of the Voting Rights Act, a protection for the right of minorities to vote. That was very good news. The less good news is that the court, which has repeatedly upheld the constitutionality of Section 5, said it raises serious constitutional concerns. The ruling may signal that the court will be tempted in a future case to strike down this important safeguard.
Congress enacted Section 5 to clamp down on election officials who use tactics like gerrymandering and closing polling places to suppress and dilute minority votes. It requires states and local governments to “preclear” changes in voting rules with the Justice Department or a federal court to determine whether they would harm minority voting rights.
The case the court considered was brought by a Texas utility district with an elected board. The district wanted to be removed from coverage by Section 5, or alternatively, for the court to hold Section 5 to be unconstitutional, because Congress overstepped its authority in passing it. A lower court rejected both claims.
Based on the questions the justices asked at oral arguments in April — always a risky gauge — it appeared as if the court might be poised to strike down Section 5. In the end, it took a narrower approach.
By an 8-to-1 vote, it ruled that the utility district should have been allowed to bail out from the requirements of Section 5. The lower court, it said, had read the bailout provision incorrectly. In keeping with its traditional reluctance to decide constitutional questions unless it must, the court said that it would not rule on whether Section 5 is constitutional.
But Chief Justice John Roberts’s majority opinion laid the groundwork for possibly doing so in the future. It said, “We are now a very different nation” than more than 40 years ago when the Voting Rights Act was first upheld. “Whether conditions continue to justify” the act, the majority said, is “a difficult constitutional question.”
Congress answered that question in 2006 before it reauthorized the act by votes of 390 to 33 in the House and 98 to 0 in the Senate. It held extensive hearings and produced voluminous evidence that minority voters continue to face significant obstacles. The next time it considers the question, the Supreme Court should make clear that Section 5 is still needed and still constitutional.

Ruling Prompts a Mixed Response

The New York Times
Published June 22, 2009

The board members of the Northwest Austin Municipal Utility District No. 1 say they will probably apply for the right to move their voting booths to or from garages without having to prove that doing so will not disenfranchise minority voters.

That was the most immediate impact of Monday’s Supreme Court ruling upholding the Voting Rights Act. That it could be so small and local — so disconnected from the constitutional question of whether the federal government can force certain areas to prove their electoral system is not racist — seemed to bother residents only slightly.

“The neighborhood was vindicated,” said Don Zimmerman, who has served as a member of the board that runs the district, which is part of an affluent suburb of Austin, Tex. “I thought from Day 1 there was an injustice.”

The ruling’s affect on other areas, however, may not be so quick to emerge, even though the court changed the way the law has long been applied. It was a narrow decision; the court gave smaller government entities that do not handle their own voter registration, like school boards and water districts, the right to use the same “bail out” process offered to states and municipalities seeking to be exempt from the act.

How many of these districts will actually use their new opportunity remains to be seen. Even in the South, where most of the 16 states covered entirely or in part by the law can be found, plans seem to vary.

Scott Price, general counsel to the South Carolina School Boards Association, said he expected several districts to seek relief from the so-called “pre-clearance” provision in Section 5 of the act, which mandates approval from the Department of Justice for changes in voting procedures.
But Phil Hartley, a lawyer representing the School Boards Association in Georgia, said few districts in his state would bother. “As a practical matter,” Mr. Hartley said of the court’s decision, “this means very little.”

Echoing the analysis of Chief Justice John G. Roberts Jr., who wrote for the 8-to-1 majority, Mr. Hartley said the government’s standards of proof for opting out of the act were so cumbersome that only 17 jurisdictions had successfully done so since 1982. Requesting permission has become too routine to inspire a demand for an exemption, he said.

“I’ve been practicing school law for 30 years,” Mr. Hartley said. “I can count on one hand the number of school board applications that have been rejected.”

Drawing attention to the issue in Georgia, however, are signs that the Obama administration could soon take a harder line toward enforcing the Voting Rights Act. A few weeks ago, the Department of Justice disallowed a Georgia program that combed through state databases, in part to find voters who may not be citizens and remove them from the rolls.

A letter from the Civil Rights Division of the department said the program filtered out too many eligible voters and had a disproportionate impact on members of minorities.

Rick Hasen, an election law expert at Loyola Law School in Los Angeles and a supporter of the Voting Rights Act, said that some Southern politicians saw such aggressive enforcement as proof that their sovereignty was being violated by a law that treats them as if they had not matured since it was first enacted in 1965.

Indeed, a brief filed by Gov. Sonny Perdue of Georgia in the case decided Monday said: “Today’s Georgia is not, as Congress suggests, a place where the state or local governments sponsor racial discrimination in the electoral process that must be curbed by the federal government.”

Legal scholars say a fuller portrait of the battleground shaped by the Supreme Court’s opinion — and the Obama administration’s still-nascent approach to voting rights enforcement — will come next year when states begin redistricting. If the court had struck down Section 5, states like Georgia would have avoided having to prove that changes in districts and procedures would not disenfranchise minorities.

Maintaining the law means leaving Washington with an extra weapon. “Redistricting is a massive big-stakes moment because somebody’s ox is always going to get gored,” said Heather Gerken, a professor at Yale Law School. “And Section 5 will influence whose ox gets gored.”

Residents and supporters of Municipal Utility District No. 1 have chosen to see Monday’s decision differently. The court’s nearly unanimous decision officially acknowledged that race relations had “unquestionably improved” — hinting that the act may no longer be necessary at some point soon.

Edward Blum, a former Texan who now serves as director of the Project on Fair Representation, a legal defense foundation in Washington that challenges race-based government policies and supported the plaintiff in this case, called the ruling “an excellent first chop on the log.”

“The question of the constitutionality will await another lawsuit,” Mr. Blum said, “and I am confident one will be filed sooner rather than later. We have won the first battle, but the war is not over.”

Quelle Surprise! The Unexpected Ruling that Saves Section 5

The Wall Street Journal
June 22, 2009, 1:43 PM ET

It’s in the waning days of June that the Supreme Court winds up its business for the term, typically with its most high-profile decisions. Today, one such decision was handed down from on high — the case known as Northwest Austin Municipal Utility District v. Holder.

At issue in the case was the constitutionality of section 5 of the 1965 Voting Rights Act, which requires governments in so-called “covered” jurisdictions — state and local governments in areas that once practiced discrimination — to “preclear” changes in election procedures with the Justice Department to ensure that minority voters are protected. In 2006, President Bush signed a bill reauthorizing the provision for another 25 years. Click here, here, here and here for previous LB posts on the case.

Supreme Court followers and commentators had expected a narrow ruling in the case, with the constitutionality of section 5 possibly turning on the vote of Justice Kennedy. But the Court threw everyone a curve-ball, ruling 8-1 in an opinion written by Chief Justice Roberts that drew a narrower path — keeping Section 5 in place, but allowing the “covered” jurisdiction at issue — a utility district in Austin, Texas — to apply for exemption from the law. Click here for the opinion; here for the writeup from the WSJ’s Jess Bravin; here for the same from Scotusblog.

Election-law specialist and Loyola Law School professor Rick Hasen was quick to gin up this interesting take on the ruling. Hasen’s take: Roberts has “managed to put together a coalition of 8 of 9 Justices to put the question [of section 5's constitutionality] off for another day. To do so, the Chief had to ignore the seeming plain language of the act, as well as earlier Supreme Court caselaw on point to reach an interpretation of the Act virtually no lawyer thought was plausible.”
We checked in with Hasen to explore what he meant by this quote, and get his take more generally on the ruling.

Hi Rick. Thanks for chatting. A big case, and right in your specialty. It must feel like Christmas today, eh?

Even more like Christmas given that the court didn’t strike down the Act. We, and other supporters of the Act, really didn’t know how this case was going to play out.

The outcome seemed to defy your expectations. How come?

This really was the marquee challenge to the constitutionality of a key part of the Voting Rights Act. It was teed up as a major case on the provision and it seemed to me and many others that there really was no middle ground for the court, as there usually is. At least I didn’t see one. I thought the provision would either be struck down or supported. So the surprise today was that the court managed to find a middle ground and avoid the constitutional question.

What was the middle ground reached here?

It’s kind of technical, but the court didn’t rule on the constitutionality of the section. Instead, the court found that this utility district can ask that it be let out of coverage of section 5. In other words, that it no longer have to seek preclearance whenever it makes a change in its voting procedures.

Why didn’t you foresee this middle ground?

Primarily because the statute is written pretty clearly that only states and other jurisdictions that register voters can ask for this bailout. It’s not something that’s supposed to be afforded smaller jurisdictions like this utility district. In a 1980 case called City of Rome, the court essentially held the same thing.

Yet the court found a way to see this interpretation was no longer one it needed to follow.And what about this idea of constitutional avoidance? This has been a part of Chief Justice Roberts’s judicial philosophy for a while, hasn’t it?

It has. In several cases, he’s been able to get the result he wants without making major constitutional pronouncements. There was a campaign finance case a couple of years ago [called Federal Election Commission v. Wisconsin Right to Life], that opened up the possibility for a large amount of corporate spending, but rather than head on striking the McCain-Feingold campaign-finance law, he created a constitutional exception. That’s been the way he’s tried to do things.

Frankly, in this case, I didn’t see the way to do this without too a pretty major contortion on Roberts’s part. But he blinked here. He went for a statutory position that’s pretty tough to justify in order to get a result he likes.

Really? Do you view it as a misreading of the underlying statute?

What I would say is that the Court pulled a rabbit out of its hat, I teach legislation as well, and a big question in that field — in statutory interpretation — is whether one can argue with a straight face that a statute is really ambiguous enough to trigger to rule that a statute should be interpreted to avoid constitutional problems. In my opinion, this is a real stretch. [Yale's] Heather Gerken said over at Balkinization today that she didn’t really think anyone outside the lawyer for the utility district [Greg Coleman] actually thought this result was a possibility.


Well, both Justices Souter and Ginsburg were pushing this, so I really view this in some ways as Justice Souter’s legacy — that he saved section 5 temporarily, at least past the next redistricting cycle.

Are you surprised that Chief Justice Roberts got seven other justices to go along with him?

It’s hard to know what the internal dynamics of the court were here. It’s hard to know whether this was Roberts’s brainchild or whether he saw that Justice Kennedy was going to vote for the liberals and tried to craft a bit of a compromise here. I’d think that the liberal justices are thrilled, though. The opinion really doesn’t cost them that much and it saves an outcome that I doubt they would have liked very much.

And what to make of Justice Thomas’s dissent?

He wrote an opinion that is the kind that I would have expected Roberts to sign off on. It’s a short opinion; in Justice Thomas’s mind, this was not a difficult question.

Anything else to note?

We’ve yet to get an opinion in the Citizen’s United case, which involves the constitutionality of another section of McCain-Feingold. I think that this issue of constitutional avoidance could come into play there. This could be a preview of things to come.

Great, Rick. Thanks for taking the time.

My pleasure.

Thursday, April 30, 2009

Racial Gap Evaporated in 2008 Election

May 1, 2009

No Racial Gap Seen in ’08 Vote Turnout

The longstanding gap between blacks and whites in voter participation evaporated in the presidential election last year, according to an analysis released Thursday. Black, Hispanic and Asian voters made up nearly a quarter of the electorate, setting a record.

The analysis, by the Pew Research Center, also found that for the first time, black women turned out at a higher rate than any other racial, ethnic and gender group.

The study attributed the findings to several factors beyond the obvious one: Barack Obama’s candidacy. For instance, the number of eligible Hispanic voters has soared by more than 21 percent since 2004, a reflection of population gains and growing numbers of Hispanics who are citizens. Their share of eligible voters increased to 9.5 percent, from 8.2 percent four years earlier. In 2008, for the first time, the share of white non-Hispanic eligible voters fell below 75 percent.

“What this report demonstrates is a pretty potent one-two punch of demographic change and behavioral change,” said Paul Taylor, executive vice president of the Pew Research Center. “The white share of the overall vote has been stepping down pretty steadily for 20 years.”

“In 2008 we obviously had a historic candidacy,” added Mr. Taylor, who was a co-author of the analysis. “That’s certainly a plausible explanation for the spike in African-American turnout. The question was, Would other minorities vote for this minority? Not only did he get a big vote, but he got a big turnout.”

The analysis, by Mr. Taylor and Mark Hugo Lopez, associate director of the Pew Hispanic Center, was drawn from Census Bureau surveys of voter participation and was supplemented by a study from the Center for Information and Research on Civic Learning and Engagementat Tufts University.

Despite widespread predictions of record voter turnout last November, the overall rate was virtually the same as in 2004. But the composition of the electorate changed. The turnout among eligible whites declined slightly, by 1.1 percent, but rose by 4.9 percent among blacks.

In 2004, the gap between white and black turnout rates was nearly seven percentage points. It was less than one percentage point four years later.

Polls during the campaign found that young people in general and blacks in particular were the most energized by Mr. Obama’s candidacy.

The Pew analysis found that whites constituted 76.3 percent of the record 131 million Americans who voted last November. Blacks accounted for 12.1 percent, Hispanic voters for 7.4 percent and Asians for 2.5 percent.

Together, black, Hispanic and Asian voters made up 22 percent of the voters, compared with about 12 percent in 1988.

The analysis found that Southern states with large populations of black eligible voters recorded the greatest increase in turnout rates. In Mississippi, the rate increased by eight percentage points compared with 2004 — to 69.7 percent, from 61.7 percent.

Mr. Obama scored upsets in several Southern states. Those victories were attributed to the growing number of migrants from other parts of the country, younger voters and a surge in turnout among blacks.


Tuesday, April 28, 2009

Supreme Court to consider striking portion of Voter Rights Act

April 28, 2009

On Voting Rights, Test of History v. Progress

WASHINGTON — Ellen D. Katz is a liberal law professor and a big fan of the Voting Rights Act of 1965, which she calls the most effective civil rights legislation in American history. “It’s sacred,” she said. “It’s holy.”

But Professor Katz is torn about what the Supreme Court should do in a case asking it to strike down a central part of the law. She cannot shake the feeling that the election of the nation’s first black president has changed everything.

“This election was momentous,” said Professor Katz, who teaches voting rights and legal history at the University of Michigan, “and it arguably presents the moment when Congress should close out this regime.”

That Barack Obama is now president is not directly relevant to any issue in the case, Northwest Austin Municipal Utility District No. 1 v. Holder, No. 08-322, which will be argued on Wednesday and is widely considered the most important of the term.

Yet as they consider whether to cut off one of the great legal legacies of the civil rights era, the justices may be asking themselves the inevitable question: Is a law rooted in the age of Jim Crow still needed in the Obama era?

The central question before the court, though, is this: Did Congress overstep its constitutional power in 2006 by reauthorizing Section 5of the act, which requires states and localities with a history of discrimination to obtain federal permission before making changes to their voting procedures?

“Obama inexorably shapes how we understand Section 5 today,” Professor Katz said, adding that the court should take the unusual step of finding a way to force Congress to take a fresh look at the law, which expires in 2031.

Theodore M. Shaw, a law professor at Columbia and a former president of the NAACP Legal Defense and Educational Fund Inc., said the court should not place too much weight on a single election. “We’ve had a profound moment, and we’re in a different place,” Professor Shaw said. “But race still plays powerfully in electoral politics in this country. If it weren’t for the Voting Rights Act, there would be noPresident Obama.”

The act was a triumph of the civil rights movement. It took on, as the Supreme Court said in upholding it in 1966, the “insidious and pervasive evil” of state officials defiantly committed to denying blacks the right to vote.

At the act’s heart is Section 5, which requires state officials to get permission from the Justice Department or a federal court before they make even minor changes to voting procedures. Such federal intrusion into state affairs through “preclearance” rather than subsequent litigation was needed, the Supreme Court said in 1966, to address “unremitting and ingenious defiance of the Constitution” by state officials.

The court has repeatedly upheld the act. Just last month, even as it limited another part of the law, three relatively conservative justices in the majority acknowledged that more work was needed to ensure equal access at the polls.

Some state officials, mostly in the South, bristle at what they say is the stigma, burden and federal intrusion that come with being covered by Section 5.

Gov. Bob Riley of Alabama, a Republican, conceded in a friend-of-the-court brief that his state’s racist policies had earned it a place on Section 5’s original coverage list. “Through acts of violence and willful defiance of federal law,” Mr. Riley told the court, “Alabama maintained an all-white legislature and 19 percent black voter registration in 1965.”

Today, though, he said, black and white voter registration rates are virtually identical — 72.9 percent for blacks and 73.8 percent for whites. And a quarter of the state legislators are black, almost exactly reflecting the state’s population.

In extending the Voting Rights Act in 2006, Mr. Riley said, “Congress wrongly equated Alabama’s modern government, and its people, with their Jim Crow ancestors.”

Besides Alabama, Section 5 applies to Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas; most of Virginia; counties and townships in California, Florida, Michigan, New Hampshire, North Carolina and South Dakota; and three New York City boroughs: Manhattan, Brooklyn and the Bronx. The act requires federal permission before making changes in voting procedures like how registration is conducted, where polling places are put, how elections are publicized and where the boundaries of voting precincts are drawn.

Most changes are minor, but redistricting or wholesale revisions of election laws can require complicated, expensive and time-consuming submissions.

supporting brief urging the court to uphold the law filed by six states at least partly subject to the preclearance requirement said the minor burdens were offset by benefits including expert guidance in avoiding discrimination, less litigation and better race relations. The law also allows jurisdictions with clean records to ask a court to let them “bail out” of the preclearance requirements.

The jurisdictions subject to Section 5 were selected based on whether they had used devices to discourage voting, like literacy tests, and data from the 1964, 1968 and 1972 elections. Congress did not tinker with those decades-old criteria when it renewed in 2006.

The question before the Supreme Court is not whether the criteria were optimal but whether Congress acted beyond its constitutional authority in using them.

There are arguments on both sides. On the one hand, Congressional power is at its peak in the areas of race and voting. On the other hand, the federal intrusion under Section 5 is unique in American legal history.

The Supreme Court has repeatedly upheld the Voting Rights Act and its earlier extensions. But a 1997 decision in a religion case, City of Boerne v. Flores, may require the court to subject the latest extension to more exacting scrutiny than it has in the past, one that asks not only whether legislation was a rational response to constitutional violations but also whether it was “congruent and proportional” to them.

The case before the court was brought by a Texas utility district that was established on undeveloped land in the late 1980s. The district said it had never been accused of voting discrimination. Lawyers for the district told the court that the current Voting Rights Act “treats racism as an inheritance that runs with the land rather than a manifestation of attitudes and actions of living individuals.”

The crucial vote on the court will probably be that of Justice Anthony M. Kennedy. In another voting rights case decided last month,Bartlett v. Strickland, Justice Kennedy indicated that he might oppose eliminating Section 5 of the Voting Rights Act.

“Racial discrimination and racially polarized voting are not ancient history,” he wrote. “Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions.”

Tuesday, March 10, 2009

Supreme Court Dillutes Minority Voting Districts

The New York Times

March 10, 2009

Justices, 5-4, Set Limit on Sweep of Voting Law

WASHINGTON — Only election districts in which minorities make up at least half of the voting-age population are entitled to the protections of a part of the Voting Rights Act that seeks to ensure and preserve minority voting power, the Supreme Court ruled on Monday.
Officials in North Carolina had argued that the act required them to help maintain black influence at the voting booth by creating a district that included about 39 percent of the black voting-age population. The theory was that the law protected black voters who joined with white “crossover voters” to elect a candidate of the black voters’ choice. The court rejected that argument by a 5-to-4 vote.

Congress did not specify what percentage of minority voters in a district would call for the protections of Section 2 of the Voting Rights Act of 1965 when it later prohibited what courts have termed “vote dilution.” And the Supreme Court until now had avoided picking a number.
The district at issue in the case, which the North Carolina General Assembly created in 2003, was the consequence of an effort to preserve minority voting power notwithstanding changing demographics and legal concerns about the district’s shape. North Carolina officials settled on combining parts of two counties to create a relatively compact district that they said maintained “an adequate representation of black voters,” which was, in their view, 39 percent.

In rejecting the district, the Supreme Court effectively reduced the number of voting districts in which the Voting Rights Act will mandate that minorities play a dominant role. The bright-line 50 percent rule also makes litigation over the legality of particular districts less likely.
“The decision turns 50 percent into a magic number,” said Richard L. Hasen, who teaches election law at Loyola Law School in Los Angeles.

Richard H. Pildes, a law professor at New York University whose work the justices cited many times in the decision Monday, said that current events, including the fact that both major political parties are led by African-Americans, had complicated the legal landscape, creating “tremendous pressure on a statute that was primarily structured for an earlier era in which blacks were completely excluded from office.”

The decision resolved a question the court had left open in earlier decisions, and it touched off a sharp debate among the justices about how best to protect minority voting rights without cementing racially polarized voting.

In dissent, Justice David H. Souter — writing for himself and Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens — said the upshot of the decision would be more racial polarization. It will require states “to pack black voters” into districts in which minorities make up the majority, Justice Souter said, “contracting the number of districts where racial minorities are having success in transcending racial divisions.”

Nonetheless, some legal experts said the impact of the decision might be relatively minor. “How many districts will not be drawn as a result of this decision?” asked Nathaniel Persily, a law professor at Columbia. “The answer is very few.”

Whatever its practical impact, the decision contained important hints about how the justices will approach the term’s more significant Voting Rights Act case: one that concerns Section 5 of the act, which requires jurisdictions with a history of racial discrimination to obtain the federal government’s permission before changing voting procedures.

Justice Anthony M. Kennedy, who wrote the controlling opinion on Monday and will almost certainly be in the majority in the next case, signaled that he was alert to the legacy of racial discrimination and in favor of only incremental steps in cutting back on the sweep of voting rights protections.

“Racial discrimination and racially polarized voting are not ancient history,” Justice Kennedy said. But the goal of the Voting Rights Act, he continued, was to “hasten the waning of racism in American politics” rather than to “entrench racial differences.”

In all, said Heather Gerken, a law professor at Yale, Justice Kennedy’s statements “bode well for the constitutionality of the Voting Rights Act” in the case to be argued in April, Northwest Austin Municipal Utility District v. Holder, No. 08-322.

The district at issue in Monday’s decision, Bartlett v. Strickland, No. 07-689, violated the North Carolina Constitution, which forbids dividing counties when drawing legislative districts. County officials sued, and state officials defended the boundaries by saying the district was required by the Voting Rights Act. The State Supreme Court ruled that only districts in which minorities made up 50 percent of voters were covered by the provision in Section 2 of the act, which protects minority voting power.

Before the 2000 census, the predecessor to the disputed district had a black voting-age population of about 56 percent. After the census, the population fell below 50 percent, and concerns were raised about the shape of the old district.

State officials decided to violate the State Constitution in order to comply with their understanding of the Voting Rights Act, which they contended would be satisfied with a relatively compact district that included parts of two counties and a black voting-age population of 39 percent.

The act itself does not answer the question of what percentage of potential minority voters is required. It requires courts to look at “the totality of the circumstances” to decide whether some groups “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

But the Supreme Court suggested in 1986 that there may be a 50 percent threshold, and on Monday it made that suggestion into what Justice Kennedy called “an objective, numerical test” that “draws clean lines for courts and legislatures alike.

“Nothing in Section 2 grants special protection to a minority group’s right to form political coalitions,” said Justice Kennedy, who was joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. “There is a difference between a racial minority group’s ‘own choice’ and the choice made by a coalition.”

Justice Souter presented data to support his point that the 50 percent line was arbitrary and counterproductive. In 2004, he wrote, seven of nine North Carolina State House districts in which blacks made up the majority of the voting age population had elected black representatives. But so did 11 of 12 additional districts in which the voting age population was at least 39 percent black.

Justice Clarence Thomas, joined by Justice Antonin Scalia, voted with the majority but did not adopt Justice Kennedy’s reasoning.

Justice Thomas said Section 2 of the Voting Rights Act did not protect even districts in which minority voters represented a clear majority. So-called vote-dilution claims, he wrote, quoting his own earlier opinion, have produced “a disastrous misadventure in judicial policy making.”

Monday, October 6, 2008

NAACP Legal Defense and Educational Fund Launches Voter Awareness Initiative

PREPARED TO VOTE: Voter Protection 2008

August 6, 2008 NAACP Legal Defense Fund Unveils New Strategy to Protect Voting Rights this November (New York, NY)

Today the NAACP Legal Defenseand Educational Fund, (LDF), unveiled its new comprehensive non-partisan voter awareness program, "Prepared to Vote". "Prepared to Vote is a program designed to raise every voter's awareness of the many obstacles in the electoral process that could affect their right to vote in the 2008 election. Through Prepared to Vote we hope to ensure that every eligible voter casts a vote that counts," said John Payton, LDF President and Director-Counsel. Inspired by the Freedom School Model from the Civil Rights Movement, the Prepared to Vote Campaign seeks to empower communities of color by providing essential information prior to Election Day. Program components include community-based workshops, the dissemination of user-friendly materials, meetings with election officials, and a dynamic educational website

The Prepared to Vote program will help reveal and address voting barriers, such as voter ID requirements, voter purges, faulty voter rolls, poorly trained elections officials, felon disfranchisement statutes and a host of other potential obstacles. With record voter participation anticipated in the upcoming Presidential Election, the Prepared to Vote Campaign will help protect the rights of voters and ensure that America's democratic processes are administered uniformly and fairly in communitiesof color. LDF is proud to continue its long tradition of protecting the rights of voters across the spectrumof American life. LDF will be deploying attorneys to 10 states to conduct field operations in an effort to prevent actsof omission that could result in disfranchisement reminiscent of the 2000 election.

The Prepared to Vote Program covers: Alabama, Delaware, Indiana, Louisiana, Missouri, Maryland, Mississippi, Texas, South Carolina and North Carolina.

DEPARTMENT OF JUSTICE voter rights Fact Sheet

CRT(202) 514-2007TDD (202) 514-1888

Fact Sheet: Protecting Voting Rights and Preventing Election Fraud

One of the Department of Justice’s (DOJ) highest priorities is to protect voting rights and enforce specific federal laws that help to ensure that all qualified voters have an opportunity to cast their ballots and have them counted. The Ballot Access and Voting Integrity Initiative was established in October 2002 to spearhead the Department’s expanded efforts to address election crimes and voting rights violations. The initiative has two overarching goals: to ensure fair voting access and to protect the integrity of the election process.

As part of the initiative, on July 1-2, DOJ is holding its 7th annual Ballot Access and Voting Integrity Symposium at the Department’s National Advocacy Center in Columbia, South Carolina. The symposium provides for training of Department personnel in preparation for federal elections including the Nov. 4, 2008 general election. With the participation of attorneys from 93 U.S. Attorneys’ Offices, the symposium strengthens the nationwide span of expertise related to enforcement of voting rights and prosecution of election crimes.

In addition, the symposium provides guidance on federal-state coordination matters to U.S. Attorneys who in the coming months will meet with state officials responsible for handling election matters in their respective districts.

On Nov. 4, 2008, under the programs implemented by the Criminal and Civil Rights Divisions, the Department will be working hard to ensure fair access for the nation’s voters, and to uphold the integrity of the nation’s democratic electoral process. The Justice Department enforces specific federal voting rights laws and has accomplished significant results in the past several years. These efforts include the following:

Civil Rights Division Enforcement:

The Civil Rights Division enforces the civil provisions of the Voting Rights Act of 1965 and the subsequent amendments; the Uniformed and Overseas Citizen Absentee Voting Act of 1986 (UOCAVA); the National Voter Registration Act of 1993 (Motor Voter or NVRA); and the Help America Vote Act of 2002 (HAVA). For Election Day, Nov. 4, 2008, the Civil Rights Division will implement a comprehensive program to help ensure ballot access which will include the following:

The Department will ensure the proper training of the District Election Officials (DEOs), in every U.S. Attorney’s Office across the country on ballot access laws.

The Civil Rights Division will send hundreds of federal personnel, including Justice Department employees, to posts in a wide scope of states across the nation.

In identifying locations where federal monitors may be needed, the Civil Rights Division has already sought out the views of many organizations, including advocacy groups for minority voters and voters with disabilities, as well as state and local officials.

The Civil Rights Division has been engaged in a major outreach effort to minority groups and election officials to inform jurisdictions of their obligations under the language minority provisions of the Voting Rights Act. The Division will continue to enforce the law that requires jurisdictions meeting certain criteria to provide bilingual access to elections.

On Election Day, voters will be able to file complaints online on the Voting Section home page Civil Rights Division personnel will be available at a specially staffed toll free number, 1-800-253-3931, to receive complaints, and on a dedicated TTY line, 1-888-305-3228.

Civil Rights Division Record on Election Matters:

The Civil Rights Division’s commitment to ensuring voter access has resulted in an unprecedented scope of observer and monitor coverage during the past six years. Moreover, a majority of all federal court orders providing for federal observers were obtained or extended by this Administration.

In recent years, the Civil Rights Division has broken records with regard to enforcement of Section 208 of the Voting Rights Act, which assures all voters who need assistance in marking their ballots the right to choose a person they trust to provide that assistance. During the past six years, we have brought nine of the 11 such claims brought by the Department since Section 208 was enacted 26 years ago.

The Civil Rights Division’s commitment to enforcing the language minority requirements of the Voting Rights Act, reauthorized by Congress in 2006, remains strong, with nine lawsuits filed in fiscal year 2007. During the past seven years, the Civil Rights Division has brought more cases under the minority language provisions than in all other years combined since 1965.

The Civil Rights Division continues to work diligently to protect the voting rights of our nation’s military and overseas citizens under UOCAVA. In the last three fiscal years, the Division has taken legal action, or obtained relief without the need for litigation, in six states to ensure military and overseas voters’ rights are protected under UOCAVA. The Division will continue to make every effort to ensure that our citizens abroad and the brave men and women of our military are afforded a full opportunity to participate in federal elections.

In addition to the Voting Section’s efforts, the Criminal Section of the Civil Rights Division will be vigilant in its scrutiny of vote suppression or intimidation schemes that may target victims on the basis of race, color, or national origin. Accordingly, the Criminal Section of the Civil Rights Division will be working closely with the Public Integrity Section of the Criminal Division to identify possible violations of the statutes that prohibit intentional interference with the right to vote.

Criminal Division Enforcement:

The Criminal Division's Public Integrity Section and the Department's 93 U.S. Attorneys Offices are responsible for enforcing the election fraud laws passed by Congress and signed by the President. On Nov. 4, 2008, they will do so by ensuring the following:

Federal prosecutors in Washington, D.C., and throughout the nation will be readily available on Election Day to receive complaints and take any appropriate action.

Designated DEOs will be available in each U.S. Attorney’s district to receive and handle any complaints from the public.

Criminal Division attorneys will be on duty to assist with potential election crimes from the time the polls open on the east coast until the time they close on the west coast to provide consultation and coordination with the DEOs.

Criminal Division Record on Voting Fraud:

The Criminal Division and the Department's 93 U.S. Attorneys Offices enforce laws that prohibit the following: voter intimidation; voting by ineligible individuals; vote buying; destruction of valid ballots or registrations; fraud related to counting more votes then registered voters; altering vote tallies; voting in multiple counties; abuse of absentee ballots; malfeasance by election officials; the disappearance of ballot boxes; furnishing fraudulent voter registration forms to election registrars; and forging the names of voters on absentee ballot materials.
Since the Attorney General’s Ballot Access and voting Integrity Initiative was launched in 2002, over 140 individuals have been charged with election fraud offenses. Over 100 people have been convicted of voter fraud in that time frame.

Over 360 election fraud investigations have been started since the initiative began in 2002. There are now approximately 90 investigations ongoing throughout the country.