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Last argument: Major test on voting rights

A major constitutional controversy, with potentially far-reaching impact on the voting rights of minorities, reaches the Supreme Court in Northwest Austin Municipal Utility District v. Holder (08-322). It tests the constitutionality of Congress’ 25-year extension of Section 5 of the Voting Rights Act of 1965.  The final oral argument of the current Term will occur in the case starting at 10 a.m. Wednesday. The audiotape of the argument will be released for broadcast shortly after 11 a.m.


On Feb. 3, 1870, after the state of Iowa had voted to ratify the Fifteenth Amendment, it became a part of the Constitution. It says that the right to vote could not be “denied or abridged” by the national or state governments based on “race, color, or previous condition of servitude.”  For the first time since the Constitution was written in 1787, blacks — including former slaves — were guaranteed the right to vote.  Many historians contend, however, that this right did not become a reality for minorities across America for more than 95 years – until after President Lyndon B. Johnson signed into law the Voting Rights Act of 1965, on Aug. 6 of that year.

Beginning in about 1890, a wave of state laws had sought to nullify the effect of the Fifteenth Amendment, as well as of the Fourteenth Amendment’s guarantee of legal equality.  Blacks seeking to vote were required to do such things as demonstrate that they could read and write, which many could not, or to pay poll taxes, which many of them could not afford.  If official barriers did not keep them from attempting to vote, violent intimidation did.  The pattern persisted for decades.  A series of court decisions could only nullify one barrier at a time, and modern barrier-clearing federal anti-discrimination laws – enacted in 1957 and later — were no more effective in breaking the grip of discrimination in voting.  By 1965, Congress had become persuaded that more sweeping measures were necessary to assure that minorities actually did get to the polls and did get to vote and have their votes counted.

To civil rights advocates, the resulting law is the most effective federal civil rights law ever passed.  The NAACP Legal Defense Fund has said, for example, that “it is the law that first made the promises of the Fourteenth and Fifteenth Amendments meaningful in the area of voting.” To some conservative analysts, though, it amounts to a deep intrusion into the sovereign powers of the states.  Utah political science professor Anthony A. Peacock, for example, has called it a “draconian” measure that has “effectively put states into ‘administrative receivership,’ undermining principles of federalism at their most fundamental level.”

Now, for the first time in 29 years, the Supreme Court is confronting a new, direct constitutional challenge to a key section of the 1965 Act.  The case is Northwest Austin Municipal Utility District v. Holder (08-322).

Congress made part of the 1965 Act permanent and nationwide in its binding effect – the part that outlaws any state or local “voting qualification or prerequisite to voting” or any procedure that denies or abridges the right to vote based on “race or color.”  But another part of the law – Section 5 — was aimed mainly at the states in the South where there had been a sustained history of racial bias in voting. That part – Section 5 – was not made permanent.  Initially, it was to be in effect for five years.  But Congress has since extended it – in 1970 for five years, in 1975 for seven, in 1982, for 25, and, most recently, in 2006, for 25 more years, running through 2032.

To determine where Section 5 would apply, Congress provided that a “covered jurisdiction” would be one that had in force in 1964 a “test or device” that denied the right to vote (a literacy or knowledge test, a educational test, a morality test, or an endorsement as a voter by someone else) and that, in addition, had voter registration or actual vote turnout rates under 50 percent of the voting age population in 1964.  A “covered jurisdiction” could be an entire state, or a county, city or other governmental unit at the local level.  In those states or units, any and every change in voting regulations could not go into effect until cleared by either the Justice Department or a federal court in Washington, D.C.

The original law thus reached all of these Southern states – Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia – plus 39 of North Carolina’s 100 counties, and one county in Arizona.  Covered governments could bailout by showing they had not had a vote-denying test for the past five years.

New jurisdictions could come under the law by court order, if a judge found in a voting discrimination lawsuit that this was appropriate.  Changes in the law in 1975 brought in new states, if they met the original two-part formula as of 1972.  The 1975 changes also brought in other minorities – American Indians, Asian Americans, Native Alaskans, and citizens of Spanish heritage.  This also expanded the device of vote-denying tests to include jurisdictions that had English-only voting methods but had significant numbers of citizens who spoke and wrote other languages.

As a result of the 1975 amendments, all of Texas, Alaska and now Arizona came under the law, as did several counties in California, Colorado, Florida, New York, North Carolina and South Dakota and two townships in Michigan.

When the Act was renewed in 1982, Congress allowed local jurisdictions in covered states to bail out.  Bailout was now available to jurisdictions that could show they had not actually been engaging in discriminating and had worked to end it.  A number of counties and cities have “bailed out.”

The Supreme Court has twice upheld the constitutionality of Section 5 – once, for the original act, in 1966, and once in 1980.

In 2006, as the expiration of the 25-year extension voted in 1982 was approaching, Congress again explored minority voting patterns, and concluded that “vestiges of discrimination in voting continue to exist.”  It prolonged the Act for another 25 years.  The extension was given the names of three celebrated pioneers in the civil rights movement; it was called the Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act.

Over the intervening years, some covered governments began chafing under the “pre-clearance” regime, and some advocates of states’ rights and some devotees of federalism principles intensified their opposition.  By the time of the extension in 2006, scuttling Section 5 had become a major cause for some conservative activists and organizations.  A constitutional test was assured, if Congress gave the Act further life.

Under the Act, any challenge to its provisions or its application must be decided by a three-judge U.S. District Court in Washington.  Any appeal from that Court goes directly to the Supreme Court, bypassing the federal Circuit Court of Appeals.

President George W. Bush signed the extension into law on July 27, 2006, and, ten days later it was challenged in the District Court.  The lawsuit, aimed at the U.S. Attorney General, was filed by the Northwest Austin Municipal Utility District No. 1, in Austin, Texas.  Set up to provide waste collection and other public works services to about 3,500 residents, it has elections for its board of directors.  Because it is a local jurisdiction in Texas, it is covered by Section 5.

Before 2004, elections for its board were held in private homes or garages.  The board decided it wanted to move elections to a public spot, such as an elementary school.  It had to get pre-clearance in Washington to change its polling places, and for its arrangement with Travis County to conduct its elections along with county elections, making the process more efficient and easier for voters.

In its lawsuit, the Utility District sought to be bailed out from Section 5, and, if not, to challenge the constitutionality of the 25-year extension as beyond Congress’ power to remedy past discrimination in voting.  The local unit said it had never engaged in any form of voter discrimination, has never been sued in an election case, and has gained Washington approval for any change it made in its election procedures

The District Court rejected the Utility District’s bailout plea, saying that option was available only to local jurisdictions that registered voters, and this unit had never done so.  The District Court then went on to uphold Section 5’s constitutionality.  In a 121-page decision (with a 15-page appendix showing evidence continued resistance to racial equality in voting), the Court drew two constitutional conclusions – one based on the Fifteenth Amendment, one on the Fourteenth – although it said that the Fifteenth provided all of the power that Congress needed for its action.

It upheld the law under the Fifteenth Amendment, concluding that Congress had a “rational basis” for extending the law to enforce that Amendment.  Turning to the Fourteenth Amendment, the Court applied a stricter standard of review: was the Act “congruent and proportional” to the problem Congress confronted. It found that Congress satisfied that standard as it sought to continue enforcing the Fourteenth Amendment.

Jurisdictional Statement

Because the Utility District’s case went directly to the Supreme Court from the District Court, its appeal papers were filed as a Jurisdictional Statement, not as a Petition for Certiorari.  When a case reaches the Court that way, the Court cannot simply deny review if there are not four Justices’ votes for review.  The case can be disposed of only by a majority of five Justices, and while the Court can do so summarily, without briefs and oral arguments, it seldom does in that situation.

The Utility District, in its initial filing on Sept. 8, raised two questions, paraphrased here as: whether it qualified for a bailout from the pre-clearance requirement because it was a political subdivision even if it did not register voters, and whether the 25-year extension of the Act was unconstitutional because Congress in 2006 did not have evidence of continuing voting rights violations in states and local jurisdictions that remained covered even on the basis of data that was nearly four decades old – and thus out of date.  No matter whether a stringent or more lenient constitutional standard is used, the statement suggested, the extension of Section 5 failed.

The Jurisdictional Statement opened this way: “This appeal puts before the Court the most federally invasive law in existence, a provision recently reimposed on certain parts of the country premised only on an unjustified presumption that those state and local governments are systematically incapable of fulfilling their constitutional and statutory obligation to respect the voting rights of all. And, in reimposing that invasive federal preemptive oversight on local voting changes, Congress used a formula first instituted in 1965 and that has not been updated since 1975.”

The law, at its origin, was to be only “a temporary, emergency measure expiring in five years,” the Utility District said. It has now been more than four decades since Supreme Court upheld the Act against an initial challenge in 1966 (In South Carolina v. Katzenbach), it added, and in the meantime the Nation “has made undeniable progress in ensuring the voting rights of citizens of all races.”

In legal argument, it went on to urge the Court to adopt a single constitutional test by which to measure Congress’ efforts to enforce both the Fourteenth and Fifteenth Amendments.  While the District Court had required only a “rational basis” for the Act under the Fifteenth Amendment, the Utility District contended that it should have applied there the same standard it used under the Fourteenth Amendment – that is, whether the extension was “congruent” with and “proportional” to the problem as Congress examined it in 2006.  “The 2006 enactment of Section 5 does not come close to meeting that standard,” the Statement contended.

The U.S. Solicitor General urged the Court to uphold the extension without full briefing and oral argument, arguing that the District Court’s “unanimous, correct and careful disposition of the questions presented does not warrant plenary review here.”   The rejection of a bailout option for the Utility District was correct, the government contended, because the specific language of eligibility excluded it.

On the constitutional issue, the Solicitor General said that Congress had collected “extensive evidence” showing that discrimination against minority voters was continuing, and that Section 5 remains an effective means of remedying it.   Because the Utility District had filed its challenge to the Act as written, not as applied to a specific factual situation, it had an even heavier burden to show the extension was invalid, the government said.  It thus urged a summary motion to affirm the District Court.

A group of civil rights organizations that had intervened in the case also urged the Court to affirm the District Court, saying the Court had repeatedly upheld Section 5 against challenge.  Section 5, they asserted, is “the heart” of the 1965 Act.

By the time the Utility District filed its reply brief on Dec. 9, the presidential election was over, and Illinois Sen. Barack Obama had won – a point that the District stressed to support its argument that the Act was no longer needed.  “The America that has elected Barack Obama as the first African-American president is far different than when Section 5 was first enacted in 1965,” it began.  This, it added, was a “deep-rooted societal change.”   It then proceeded to argue further against the intrusion on states’ rights, saying that “Congress cannot distort the federalist structure by wielding the biggest stick at its disposal…”

One way to narrow the “overbroad contours” of Section 5, the reply brief said, was to allow more jurisdictions to bail out.

The Court on Jan. 9 noted jurisdiction over the case, thus agreeing to decide it.  Oral argument was set for April 21 – the last case to be argued in the current Term.

Merits Briefs

The Utility District, aside from a new emphasis on the changes it perceives in minorities’ access to the voting booth and even to elective office, aimed particular rhetorical heat in its merits brief at the coverage formula that determines which jurisdictions must go through the “intrusion” of the pre-clearance process.  This served two purposes: to show that “about the only thing that has not changed” since 1965 is the Act itself, demonstrating its dated character, and to show that Congress really intended to give jurisdictions under the Act an incentive to improve minorities’ voting rights and that the bailout provision was crafted for that very purpose.

It thus strenuously urged the Court to interpret the bailout provision to give any local jurisdiction the option of bailing out if it has shown “a history of respect for the voting rights of all residents.”  It attacked the Attorney General for “the constricted reading” of that provision.  That interpretation, and the District Court’s limited view of the bailout option, make that option “a virtual nullity in all but a very few” jurisdictions.

On its complaint about the sweep of the pre-clearance requirement, the District’s brief contended that the only way Section 5 can survive constitutionally is to read it to apply only to claims of purposeful discrimination and, in particular, only to claims that officials in charge of voting methods and procedures engaged in “gamesmanship” in which they continually alter those procedures “to stay one step ahead of federal decrees.”  The record Congress assembled before extending Section 5 in 2006 is, indeed, large, the District conceded, but on examination does not demonstrate that covered jurisdictions “continue to evade enforcement.”

The Justice Department’s merits defense of Section 5’s constitutionality relied heavily upon the “extensive legislative” record that Congress compiled before extending the law, and on the fact that the Court has rejected constitutional challenges to the provision in the past, counting four occasions for that result (even though the District Court here found only two).  To the Utility District’s argument that the Act cannot satisfy the more rigorous congruency and proportionality test of constitutionality, the government answered that the Supreme Court – in the same opinion laying down that test – cited Section 5 as a prime example of how Congress can meet that test.

Moreover, the government contended, the 1965 Act is very different from the law that led to creation of that test – the Religious Freedom Restoration Act (partly nullified in the Court’s 1997 decision in City of Boerne v. Flores).  That law, the brief said, was an attempt by Congress to define constitutional rights for itself.  The 1965 Act, by contrast, “represents Congress’s response to a century of rampant discrimination that denied the voting rights of racial minorities in direct violation of the explicit mandate of the Fifteenth Amendment,” the brief asserted.

Three merits briefs were filed for the intervenors – individual voters, civil rights groups, and Travis County, Texas (the county in which the Utility District is located).  The civil rights groups  — branches of the NAACP in Texas – warned the Court against making “a mistake of historic proportions” if it were to strike down Section 5 as the Utility District ultimately asked.  They accused the District of seeking to limit Congress’ authority to keep Section 5 in being “only if the legislation has been ineffective” in eliminating barriers to minorities’ voting.  Congress did not need the same evidence used to justify the original enactment in 1965 in order to keep it on the books that year, the groups contended. “Official race discrimination,” their brief said, is not “a thing of the past” — especially in Texas, “where discrimination has been most difficult to uproot.”  Doing away with Section 5, they argued, would run “a serious risk of backsliding.”

Individual voters, in their merits brief, sought to bring out more fully the “gravity of the harm” that Congress meant to address in Section 5.  Travis County’s brief belittled the modest experience of the Utility District with the actual conduct of elections, and said the County is in a better position to know whether Section 5 remained necessary. Its own experience, it said, is “that Section 5 is far from being an anachronism….Section 5 remains salient in Texas.”

Given the historic potential of this case, the flow of amici filings was quite modest.  Only the governors rouof two states covered by the Act – Alabama and Georgia – joined with well-known conservative advocacy groups in supporting the Utility District’s challenge.  Much of the argument on that side is an attack on what it perceives as the scanty evidence supporting the 2006 extension.  There are 15 amici supporting Section 5, including, perhaps most conspicuously, six states that have had to go through the pre-clearance process, arguing not only that it is not much of a burden, but also that the existence of the Act aids the states in encouraging more minority voting.  An array of civil rights and liberal advocacy groups also join in supporting Section 5, as do former Justice Department officials (including civil rights law enforcers), members of Congress, veterans of the civil rights movement, jurisdictions that have succeeded in bailing out from the Act’s coverage, some members of the Texas legislature, and the American Bar Association.


The Court would get to the constitutionality of Section 5’s extension only if it first turned down the Utility District’s argument that it is entitled to bail out. At first gletance, it would seem that the Court would not be likely to dwell long on whether the Austin government unit can seek a bailout from the pre-clearance requirement.  The Utility District probably could win on that point only by convincing the Court that Congress, though saying bailouts would be open to local units of government only if they registered voters, actually intended to embrace a more general definition of “political subdivision.”   The Solicitor General, resisting that point, mounted not only an argument based on the language of the Act, but also on legislative history of what Congress had in mind, and the Attorney General’s longstanding interpretation of that provision.

At the same time, if the Court, moving on to consider the constitutional question, encountered   difficulty massing a majority to resolve that issue, it might turn to the bailout question as an escape mechanism.  It might find itself tempted to accept the Utility District’s contention that a more expansive reading of the bailout option was a reasonable way to narrow the sweep of the Act, if it has doubts about that sweep.

If the Court opted to move to resolve the constitutionality of Section 5, the answer could well depend upon how far the Justices are willing to go to accept the facts as gathered by Congress.  In upholding the law, the District Court said its decision turned “in no small part on the care with which Congress approached its task.” It quoted at length from the House Judiciary Committee’s description of how it approached the extension issue, and noted other highlights of the measure’s passage, including the unanimous vote of approval in the Senate and the 390-33 vote in the House. And it appended 15 pages of evidence of continuing racial   It would take a fairly bold act of second-guessing to find that Congress lacked a sufficient basis for the extension.

If there is any vulnerability in Congress’ work it could be the basis for defining what jurisdictions are covered, which, as the Utility District pointed out in its appeal, is keyed to “data from the 1972 presidential election or earlier.”

It is unclear how the Court will react to the Utility District’s argument that Congress, in continually renewing Section 5, continues to disrupt the federal-state relationship.  This implicates constitutional design, and Justice Anthony M. Kennedy, in particular, has been a somewhat jealous guardian of that design.  As seems often true, Kennedy may be holding the swing vote.

Of the nine Justices now sitting, only John Paul Stevens was on the Court when it last upheld Section 5 against a challenge to an extension 29 years ago (in City of Rome v. U.S.), and he supported that outcome.  Thus, the present Court has had comparatively little to say about Section 5 in any context, and – except for Stevens – nothing at all to say about its core constitutionality.

Perhaps the Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District may provide some clues about how members of the Court will react to the constitutional challenge, even though that case involved the validity of “affirmative action” plans to achieve racial diversity, whereas Section 5 remains on the books as a way to remedy or at least to head off racial discrimination that Congress perceived as direct.

There were four votes to strike down the use of race to achieve diversity in public schools, and four votes against, and Justice Kennedy cast the deciding vote to nullify the student assignment plans at issue, but wrote separately to demonstrate his unwillingness to strictly limit public officials’ authority to deal with perceived racial isolation in American society.