International Municipal Lawyers Association. Voting Rights Litigation: Dealing with the 2010 Census Columbia, S.C.

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1 International Municipal Lawyers Association Voting Rights Litigation: Dealing with the 2010 Census Columbia, S.C. Voting Rights, Electoral Transparency & Participation in the Political Process: Current Trends Northwest Austin Municipal Utility District No. 1 v. Holder: Lessons and Implications Christian J. Ward Partner Austin, Texas office of Yetter, Warden & Coleman, L.L.P. International Municipal Lawyers Association. This is an informational and educational report distributed by the International Municipal Lawyers Association during its Voting Rights Litigation Program. IMLA assumes no responsibility for the policies or positions presented in the report or for the presentation of its contents.

2 Northwest Austin Municipal Utility District No. 1 v. Holder: Lessons and Implications Christian J. Ward 1 In Northwest Austin Municipal Utility District No. 1 v. Holder, 2 the United States Supreme Court signaled that it may be time to reevaluate four-decade-old presumptions underlying enforcement of the landmark Voting Rights Act of Specifically, Northwest Austin MUD involved 5 of the VRA, the provision that requires certain state and local governments to preclear any changes affecting voting with the federal Department of Justice or the United States District Court for the District of Columbia. In its decision, the Supreme Court unanimously required the Department of Justice and the D.C. district court to significantly broaden the availability of bailout i.e., exemption from 5 and expressed skepticism regarding whether 5 remains a constitutional exercise of Congress s enforcement power. The Court s decision marks a new era in voting administration, one in which political subdivisions in states covered by 5 are indisputably entitled to seek bailout from the VRA s preclearance requirements. Before the Supreme Court ruled, the bulk of academic and media commentary about this case focused on the constitutional issue presented to the exclusion of the statute-based question about the availability of bailout. But the bailout issue was raised in this case from the beginning, and the district always viewed bailout as a viable remedy for the relief it sought from compliance with 5 s preclearance requirement. This paper provides some background about the legal issues in Northwest Austin MUD No. 1, describes the development of the litigation through the Supreme Court s decision, and explains how the Supreme Court reached its conclusion that the bailout statute makes bailout available to any covered political subunit that meets the substantive requirements. Along the way, the paper also offers some thoughts about the implications of this case for the future of bailout and 5. I. The VRA and the 2006 Reenactment of 5 In 1965, Congress first enacted the VRA to banish the blight of racial discrimination in voting, which ha[d] infected the electoral process in parts of our country for nearly a century. 3 The Act s primary substantive provision was the permanent, nationally applied 2, which closely tracked the Fifteenth Amendment s guarantee against denial or abridgment of the right to vote because of race or color. 4 Section 5 of the VRA required certain jurisdictions to obtain federal preapproval known as preclearance for any change affecting voting either by seeking 1 Chris Ward is a partner in the Austin, Texas office of Yetter, Warden & Coleman, L.L.P., where his practice focuses on complex appeals. He is one of the counsel for the plaintiff utility district in Northwest Austin Municipal Utility District No. 1 v. Holder S. Ct (2009). 3 South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966) U.S.C

3 a declaratory judgment from the United States District Court for the District of Columbia or by submitting the change for vetting by the Attorney General. 5 The district court or the Justice Department may only approve the change if it finds that 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. 6 Previous statutory attempts to enforce the guarantees of voting rights enshrined in the Constitution had met with little success in overcoming deep-rooted intransigence in certain parts of the country, notably and unsurprisingly in the Civil Rights Era South. Case by case litigation of voting rights abuses proved largely ineffective at substantially increasing voter registration and participation by African Americans. Section 5 was thus a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down. 7 Section 5 was originally set to expire in five years, viewed as a temporary, emergency measure, but has been extended repeatedly, most recently in 2006 until In Allen v. State Board of Elections, 9 the Supreme Court made clear that the VRA takes a very broad view of what constitutes a change affecting voting, meaning 5 s preclearance requirement extends to alterations that may have only a minor or attenuated effect on voting. 10 Such alterations might include personnel policies adopted by a school board that did not conduct elections, 11 annexation of unpopulated land, or moving a utility district s polling place from a residential garage to a public school a short distance away. Additionally, the Court, in the 1978 case United States v. Board of Commissioners of Sheffield, 12 interpreted 5 to require that any political subunit within the territory of a covered state submit its changes for preclearance, notwithstanding a more restrictive definition of political subdivision elsewhere in the Act that appeared to limit the term s application to counties, parishes, or other entities only if they registered voters. 13 Sheffield rejected the city s argument that the statutory definition of political subdivision exempted it from making preclearance submissions under 5 because the city was not a county and did not register voters. The Supreme Court explained that Congress exclusive objective in 14(c)(2)[i.e., the definition of political subdivision] was to limit the jurisdictions which may be separately designated for coverage under 4(b). 14 States and certain localities are subject to 5 coverage by a formula that takes into account the existence of a test or device and voter registration and turnout rates for 5 42 U.S.C. 1973c(a). 6 Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 129 S. Ct. 2504, 2509 (2009) (quoting 42 U.S.C. 1973c(a)). 7 Beer v. United States, 425 U.S. 130, 140 (1976). 8 See 42 U.S.C b(a)(8) U.S. 544 (1969). 10 See id. at 566 ( The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race. Moreover, compatible with the decisions of this Court, the Act gives a broad interpretation to the right to vote, recognizing that voting includes all action necessary to make a vote effective. ). 11 Dougherty County, Ga., Board of Ed. v. White, 439 U.S. 32, 44 (1978) U.S. 110 (1978). 13 Id. at & n.15, & n.18; see also Dougherty County, 439 U.S. at Sheffield, 435 U.S. at 131 n.18. 2

4 specified presidential election years. 15 The original 1965 formula was reverse engineered to capture well-known offenders against the voting rights of African Americans, including the states of Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, and certain counties in states including Florida and North Carolina. The formula relied on registration and turnout rates from the 1964 presidential election. 16 In 1975, 5 was extended for the second time and the coverage formula amended to capture jurisdictions believed to have discriminated against language minorities, bringing into the fold the states of Alaska, Arizona, and Texas and counties in states including California and New York. 17 The 1975 formula used data through the 1972 presidential election. 18 Subsequent reenactments of 5 have involved no further changes to the coverage formula, meaning that all applicable jurisdictions are covered based on registration and election data from no later than In 1982, Congress reenacted 5 again, this time with a 25-year lifespan. 20 However, already by 1982, there was some sense in Congress that 5 was no longer necessary in many covered jurisdictions and would soon become unnecessary in others. Additionally, the original bailout mechanism made no provision for local political subdivisions within a state covered in its entirety to seek termination of coverage independently of the state, which may have had the effect of providing little incentive for compliance at the local level. 21 That lack of incentive for local jurisdictions to improve, which contributed to freezing potentially discriminatory systems in place, was regarded by civil rights proponents as a significant weakness of the original VRA. 22 Providing such an incentive for covered regions to improve from the local level up was a key objective when, in the 1982 extension, Congress created a new bailout mechanism that was available for use by any political subdivision in a covered state. 23 Plainly expecting a large number of eligible subdivisions to seek bailout, Congress delayed the effective date of the new bailout mechanism until 1984 so the Department of Justice could brace itself for the expected flood of litigation. 24 Since 1982, however, only seventeen jurisdictions out of the more than 12,000 covered political subdivisions have successfully bailed out, all of them in Virginia. 25 One reason so few jurisdictions have bailed out was the Justice Department s longstanding interpretation of the term political subdivision as used in the bailout provision as limited to the entities specified in the definition in 14(c)(2) of the Act, i.e., counties, parishes, and other entities only if they register voters U.S.C b(b). 16 See id. 17 See id. The 1975 changes brought residents of Manhattan, Brooklyn, and the Bronx under Section 5. A complete list of covered jurisdictions is available at 18 See 42 U.S.C. 1973b(b). 19 See id U.S.C. 1973b(a)(8). 21 Richard A. Williamson, The 1982 Amendments to the Voting Rights Act: A Statutory Analysis of the Revised Bailout Provisions, 62 WASH. U.L.Q. 1, 30 (1984). 22 See id. at See id. at 32; 42 U.S.C. 1973b(a). 24 Williamson, supra, at 33; see S. REP. NO , at 59; H.R. REP. NO , at See Section 5 Covered Jurisdictions, 3

5 Congress, reenacted 5 essentially unchanged in 2006, extending it for another 25 years. 26 Congress also left the bailout provision unchanged from the 1982 version. 27 II. Bailout Under the VRA Under 4(a) of the VRA, a jurisdiction successful in a bailout suit would no longer be required to seek preclearance of any changes affecting voting from the Attorney General or the United States District Court for the District of Columbia. To bail out under 4(a) of the VRA, a jurisdiction must seek a declaratory judgment from a threejudge panel of the United States District Court for the District of Columbia. 28 According to 42 U.S.C. 1973b, a declaratory judgment under this section shall issue only if such court determines that during the ten years preceding the filing of the action, and during the pendency of such action: 29 the jurisdiction has not used any forbidden voting test; 30 no final judgment of any court of the United States has determined that the denials or abridgements of the right to vote on account of race or color have occurred anywhere in the territory of such political subdivision; 31 no federal examiners have been assigned to such political subdivision; 32 the jurisdiction has complied with the provisions of the VRA, including the preclearance provision of 5; 33 there have been no objections to and no denials of declaratory relief being sought by the jurisdiction under 1973c and no such submissions or declaratory actions are pending; 34 and the jurisdiction has eliminated voting procedures and methods of election which inhibit or dilute equal access to the electoral process and has engaged in constructive efforts to eliminate intimidation and harassment of voters. 35 To assist the three-judge panel in making its determination, the jurisdiction seeking bailout is required to present evidence of minority participation, including evidence of the levels of minority group registration and voting, changes in such levels over time, and disparities between minority-group and non-minority-group participation. 36 The jurisdiction must also publicize the intended commencement and any proposed settlement in the media and in the appropriate United States post offices to allow any aggrieved party to intervene as of right at any stage in the action. 37 The United States District Court for the District of Columbia retains jurisdiction of any action for ten years after judgment and will reopen the action upon motion of the Attorney General or 26 Id U.S.C. 1973b(a). 28 See 42 U.S.C. 1973b(a)(1). 29 Id. 30 See id. 1973b(a)(1)(A). 31 Id. 1973b(a)(1)(B). 32 Id. 1973b(a)(1)(C). 33 Id. 1973b(a)(1)(D). 34 Id. 1973b(a)(1)(E). 35 Id. 1973b(a)(1)(F). 36 Id. 1973b(a)(2). 37 Id. 1973b(a)(4). 4

6 any aggrieved person alleging conduct during the ten-year period that would have precluded the issuance of a declaratory judgment. 38 III. Northwest Austin Municipal Utility District Number One Northwest Austin Utility District Number One is a municipal utility district for an Austin, Texas neighborhood of about 3,500 residents known as Canyon Creek. The district was created under Texas law around 1987 to perform certain governmental functions, including bond issuance for infrastructure construction and tax assessment to service bond indebtedness. 39 Under Texas law, the district does not register voters but is responsible for its elections. Although located within the City of Austin and Travis County, the district is independent of both and subject only to the State s supervision. 40 The district is governed by a board of five directors elected to staggered four-year terms in biannual nonpartisan elections. Before 2004, the district s elections were held at private residences. Those polling places were precleared and never the subject of discrimination-related complaints, but the board eventually desired to hold elections at a more convenient public location, like the neighborhood school. While inquiring about holding elections at the school, the district learned that it could contractually delegate the conduct of its elections to Travis County and put district elections on the countywide ballot. That arrangement would also benefit voters by allowing them to go to a single, public location to vote in all local elections and by permitting the district to utilize Travis County s election apparatus, including minority and language-minority election officials and precinct workers and extensive early-voting opportunities. However, members of the district s board learned that, before making such a change, they had to get federal preclearance. Although the district received preclearance to move the polling location from the local residence to the school, some members of the board believed that such a restriction was a federal intrusion into local affairs. That experience influenced the district s decision to file a bailout suit in the United States District Court for the District of Columbia. Recognizing that the Justice Department and others had long interpreted the bailout provision restrictively applying the statutory definition of political subdivision to conclude that governmental units smaller than counties were ineligible to seek bailout the district s suit included an alternative claim that the 2006 reenactment of 5 exceeded Congress s constitutional authority. IV. The District Court Proceedings The district moved for summary judgment, submitting ample evidence that it met the substantive criteria for bailout required under 42 U.S.C. 1973b(a)(1). Cross-motions for summary judgment were filed by the Attorney General and by several organizations and individuals who had been permitted to intervene. In a May 30, 2008 opinion, the 38 Id. 1973b(a)(5). 39 See TEX. WATER CODE See id. 5

7 three-judge panel denied the district s motion for summary judgment and granted those of the Attorney General and defendant-intervenors. Having held that the district was not a political subdivision eligible for bailout, the court did not reach the question of whether the district satisfied the bailout criteria. It further held, as its primary holding on 5 s constitutionality, that the proper standard for reviewing legislation enforcing the Fifteenth Amendment was the purportedly rational-basis review articulated in Katzenbach and that the preclearance requirement of 5 met that standard. The court alternatively held that even reviewed under the purportedly different congruence and-proportionality test of City of Boerne v. Flores, 521 U.S. 507 (1997), the preclearance mechanism was constitutional. The district s appeal in this case was directly to the Supreme Court. V. Supreme Court Arguments In the Supreme Court, the district argued that the VRA s bailout mechanism is intended to be a functional mechanism that incentivizes jurisdictions to improve voting accessibility and to narrow the scope of 5 s geographic coverage to any remaining pockets of recalcitrance. The district contended that the statute is supposed to effectuate that purpose by making bailout available to political subdivisions within covered States. Although the VRA contains a restrictive definition of political subdivision that excludes most subunits smaller than counties, the district asserted that this restrictive definition applies only for the purpose of identifying entities that may be subject to separate coverage under 4(b) and does not define political subdivision elsewhere in the Act. Therefore, the district argued that it is a political subdivision within the ordinary meaning of the term and under Texas state law. The district further argued that interpreting the 4(a) bailout provision to permit the district access to bailout is necessary to fulfill bailout s purpose and mitigate constitutional problems with 5. The district alternatively argued that the 2006 enactment of 5 exceeded Congress s enforcement powers under the Reconstruction Amendments. Specifically, the district contended that 5 unnecessarily requires federal vetting of vast numbers of constitutionally benign state and local changes, that 5 s geographic boundaries bear no rational relationship to the locus of any problems that may persist, and that 5 lacks a meaningful time limit. VI. Supreme Court Opinion The Supreme Court reversed. Chief Justice Roberts wrote the majority opinion, with which seven other justices concurred. Noting that [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, 41 the Court held that the district is eligible to pursue a bailout. 42 Justice Thomas concurred in the judgment in part and dissented in part only to express 41 Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 129 S. Ct. 2504, 2513 (2009) (quoting Escambia County v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)). 42 Id. at

8 his view that the Court should have gone further, reaching the constitutional challenge and striking 5 down. 43 The Court concluded that the narrower statutory definition of political subdivision found in 14(c)(2) of the VRA did not apply to the bailout provision based on precedent, the structure of the VRA, and underlying constitutional concerns. Specifically, the Court stated that it had previously held in Sheffield v. Board of Commissioners 44 and Dougherty County, Ga. Board of Educators v. White, 45 that the statutory definition in 14(c)(2) did not apply to the preclearance obligation of Additionally, the Court explained that Congress s 1982 amendments to the VRA embraced piecemeal bailouts by providing that bailout was available to political subdivisions in a covered State though [coverage] determinations were not made with respect to such subdivision as a separate unit. 47 The Court thus agreed with the district s reasoning that the prior holdings in Sheffield and Dougherty County compelled the conclusion that political subdivision must be given its ordinary meaning, which includes entities like utility districts. 48 Although the Court did not reach the issue, it also suggested that the 2006 extension of 5 is at least constitutionally suspect. 49 The majority stated that while [t]he historic accomplishments of the Voting Rights Act are undeniable[,]... 5, which authorizes federal intrusion into sensitive areas of state and local policymaking, imposes substantial federalism costs. 50 For example, 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. 51 The Act also differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty. 52 Further, [t]he 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. 53 In its opinion, the Court indicated that Congress never intended for the bailout provision to have had such a limited effect on reducing the scope of 5 coverage. 54 It further stated that [i]n part due to the success of [the VRA], we are now a very different 43 Id. at 2517 (Thomas, J., concurring in the judgment in part and dissenting in part) U.S. 110 (1978) U.S. 32 (1978). 46 Nw. Austin Mun. Util. Dist., 129 S. Ct. at Id. at 2515 (quoting Voting Rights Act Amendments of 1982, 96 Stat. 131, codified at 42 U.S.C. 1973b(a)(1)). 48 Id. at See id. at 2513 ( The Act s preclearance requirements and its coverage formula raise serious constitutional questions.... ). 50 Id. at 2511 (citations and quotation marks omitted). 51 Id. 52 Id. at Id. 54 See id. at 2516 ( Since 1982, only 17 jurisdictions out of the more than 12,000 covered political subdivisions have successfully bailed out of the Act. It is unlikely that Congress intended the provision to have such limited effect. (internal citations omitted)). 7

9 Nation. 55 Importantly, the Supreme Court emphasized that its decision is not limited to this single MUD, but instead extends to permit all political subdivisions... to seek relief from [ 5 s] preclearance requirements. 56 The Court s holding thus should ensure that bailout becomes a realistic option for any covered political subdivision that can meet the substantive requirements. 57 VI. How Did the Supreme Court Reach Its Bailout Holding? Even after the Supreme Court issued its opinion, many observers have been left puzzled at how 4(a) of the VRA, the bailout statute which provides that any political subdivision of a covered state can pursue bailout, 42 U.S.C. 1973(b)(1) can extend to political subunits like utility districts when 14(c)(2) of the Act provides that [t]he term political 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). Northwest Austin MUD No. 1 is not a county or parish and does not conduct voter registration, and thus clearly is not within the 14(c)(2) definition. But the Supreme Court was not writing on a blank slate when it analyzed 4(a). The Court had previously restricted the application of 14(c)(2) cabining that definition, so that it does not apply to every use of the term political subdivision throughout the Act. And Congress was deemed to have acquiesced in that cabining by failing to override it with statutory language. Before 1982, the Court had twice held that 14(c)(2) does not make political subdivision a defined term throughout the VRA. Rather, the Court explained, 14(c)(2) is relevant only to identifying those subdivisions that can be subject to coverage determinations separately from their States. In Sheffield, one of the issues was whether the City of Sheffield was required to make 5 preclearance submissions given that it was not a county and did not register voters. The Supreme Court held that Sheffield was required to comply with 5 and explained that Congress exclusive objective in 14(c)(2) was to limit the jurisdictions which may be separately designated for coverage under 4(b). 58 Shortly after, in Dougherty County, the Court gave the same response to a school board that argued that it was not required to make preclearance submissions. Dougherty County recognized that Section 5 applies to all changes affecting voting made by political subdivision[s] of States designated for coverage pursuant to 4 of the Act and explained that Sheffield squarely foreclosed the school board s contention that it was not a political subdivision, even though the board did not register voters (indeed, did not even conduct elections). 59 Id., at Id. 56 Id. at See id. ( 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. ). 58 Sheffield, 435 U.S. at 131, n.18 (emphasis added) U.S. at (alteration in original). 8

10 Justice Stevens, the only member of the Sheffield Court who remains on the Court, dissented in Sheffield, arguing that the plain language of 14(c)(2) meant that the city could not be considered a political subdivision for any purpose under the Act. 60 As a textual matter of first impression, he may have been right. But, concurring in Dougherty County, Justice Stevens acknowledged that the majority s decision in Scheffield compelled the Dougherty County result. 61 In short, as the Fifth Circuit has explained, the Supreme Court has held that [ 14(c)(2) s] definition 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. 62 Some parties to Northwest Austin MUD No. 1 and commentators have argued that City of Rome v. United States 63 overruled the Sheffield/Dougherty County treatment of 14(c)(2). In that case, the Supreme Court held that the City of Rome, Georgia could not pursue bailout. But Rome simply applied pre-1982 version of the bailout provision, which expressly limited bailout to States and separately covered subdivisions. 64 Rome, 446 U.S., at , Before the 1982 revisions to the bailout provision the revisions that first put in place the local-government bailout mechanism we know today no political subunit could bail out independently, unless it was a separately covered jurisdiction. Rome did not turn on the fact that the city was not a county or other entity that registered voters but rather on the fact that the city was not separately covered, i.e., it was a city in the covered state of Georgia. In practice too, political subdivision has been treated as generally including any political subunit in most places the term appears throughout the Act. The VRA has long been read to provide that any type of political subunit can initiate a 5 action or preclearance submission, have observers assigned to it or petition for their removal, be subjected to a suit under 2, be prohibited from using discriminatory requirements, or be required to protect language minorities voting rights and provide non-english election information. All of those applications of the VRA depend on the occurrence of the term political subdivision in the text. 65 If the 14(c)(2) definition of political subdivision applied, none of those provisions could encompass any political subunit smaller than a county unless it registered voters. Congress has made no statutory change since Sheffield that would make the 14(c)(2) definition of political subdivision applicable to the term s use in the bailout provision. In 1982, Congress amended 4(a) to make bailout available, for the first time, to political subdivisions within covered states. That was also the amendment that created the new bailout criteria. That amendment included no statutory language that U.S. at (Stevens, J., dissenting). Justice Stevens viewed the purpose of the 14(c)(2) definition as to allay [the] concern that the VRA might be read to encompass minor, local governmental units. Id. at U.S. at 47 (Stevens, J., concurring). 62 United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, (Fifth Circuit 1980) U.S. 156 (1980). 64 Id. at , U.S.C. 1973, 1973a, 1973f(a)(1)-(2), 1973k(c), 1973(a), 1973b(a)(1), 1973b(f)(2), (f)(4). 9

11 incorporated the 14(c)(2) definition. The 1982 version of bailout stayed in place with the 2006 extension of 5 and, again, no statutory changes were made to override Sheffield and Dougherty County by incorporating the 14(c)(2) definition. Under the Court s precedent, Congress could not have imported the 14(c)(2) definition into 4(a) except by a relevant statutory change. 66 Simply put, under Sheffield and Dougherty County and in longstanding practice, the term political subdivision is given its ordinary meaning throughout most of the VRA. That ordinary meaning includes any political subunit. This was the lay of the statutory land when the district filed suit. The district argued that there was no textual or logical reason for treating the bailout provision s use of political subdivision any differently from that term s use in other parts of the Act. The district further argued that interpreting 4(a) to make bailout available to all political subunits recognized a symmetry between preclearance and bailout. The Supreme Court agreed, and the bailout mechanism that Congress made available to all political subunits de jure in 1982 is now also available to all political subunits de facto. The Supreme Court may now be watching with interest to see whether bailout will have its originally intended effect of reducing the geographical scope of 5 coverage. 66 See, e.g., Georgia v. United States, 411 U.S. 526, 533 (1973). 10