RECENT DECISION I. FACTS

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1 RECENT DECISION Constitutional Law -- The Fifteenth Amendment and Congressional Enforcement -- Interpreting the Voting Rights Act to Render All Political Subdivisions Eligible for Bailout Rather Than Deciding the Act s Constitutionality I. FACTS In 1987, Northwest Austin Municipal Utility District Number One was created in order to provide services to residents of Travis County, Texas. 1 The district was governed by an elected board; however, the district did not register its voters. 2 Recently, the district sought to change its election procedures. 3 Since the district was located in Texas, section 5 of the Voting Rights Act mandated that the district obtain federal preclearance for these changes or, alternatively, that the district circumvent the preclearance requirement under the section 4 bailout provision. 4 Pursuant to the Voting Rights Act, the district filed suit in the district court for the District of Columbia against the Attorney General. 5 In its complaint, the district sought relief under the section 4 bailout provision. 6 In the alternative, the district argued that if it was denied relief under the bailout provision then section 5 and its preclearance requirement was unconstitutional. 7 Ultimately, the district court rejected both claims. 8 The court concluded that the Texas district was not a State or political subdivision eligible for bailout as defined by the Voting Rights Act. 9 The court also concluded that section 5 was constitutional. 10 The Texas district appealed both rulings. 11 The United States Supreme Court noted probable jurisdiction and held: reversed. 12 Where an entity seeks bailout under the Voting 1 Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2510 (2009). 2 Id. The district is still responsible for running its own elections, but for administrative reasons, the county conducts them. Id. 3 See id. 4 Id. at 2508, This is required even though there has never been any evidence of racial discrimination in voting in the district. Id. at Id. 6 Id. The majority disagreed with Justice Thomas over what relief the district sought under the bailout provision. Id. at The majority, looking at the appellant s brief, defined the relief sought as a judgment that the district is entitled to use the bailout procedure. Id. In his separate opinion, Justice Thomas, looking at the plaintiff s first amended complaint, defined the relief sought as a declaration that the district had met the bailout requirements; therefore, preclearance no longer applied to it. Id. at 2517 (Thomas, J., concurring in part and dissenting in part). 7 Id. at 2510 (majority opinion). 8 Id. 9 Id. While the Voting Rights Act permitted any State or political subdivision to seek bailout, the Act included its own statutory definition of political subdivision. Id. Looking at this definition, the district court concluded that the [Texas] district was not a political subdivision because that term includes only counties, parishes, and voterregistering subunits. Id. 10 Id. 11 See id. The case was not heard by the Court of Appeals for the D.C. Circuit. 28

2 Rights Act, all political subdivisions not only those described in [section] 14(c)(2) are eligible to file a bailout suit. 13 Ultimately, the Court declined to address the constitutionality of section 5 based on the principal of constitutional avoidance. 14 II. RELATED LAW The Fifteenth Amendment was ratified in the wake of the Civil War. 15 The amendment declared that [t]he right of citizens... to vote shall not be denied or abridged... by any State on account of race, color, or previous condition of servitude. 16 Congress was granted the power to enforce this mandate by appropriate legislation. 17 However, for almost one hundred years, Congress failed to protect the rights of the newly enfranchised black race. 18 The situation worsened to the point where Congress needed a powerful response in order to legitimize the Fifteenth Amendment. 19 In 1965, Congress made such a response by passing the Voting Rights Act. 20 A. The Voting Rights Act of 1965 The Voting Rights Act of 1965 expressly prohibited any voting qualification... standard, practice, or procedure... imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color. 21 Accompanying this prohibition, the Act created a variety of stringent remedies in order to address the blatant disenfranchisement occurring in certain parts of the United States. 22 Accordingly, the Act imposed harsher restrictions on jurisdictions with the worst track records. 23 Some of these harsher restrictions were codified in the section 5 preclearance requirement Id. at Chief Justice Roberts delivered the opinion of the Court. Id. He was joined by Justices Stevens, Scalia, Kennedy, Souter, Ginsburg, Breyer, and Alito. Id. Additionally, Justice Thomas filed an opinion concurring in part and dissenting in part. 13 Id. at Id. at U.S. CONST. amend. XV. The Fifteenth Amendment was enacted in Id. 16 U.S. CONST. amend. XV, U.S. CONST. amend. XV, 2. The section placed no other restrictions on congressional enforcement. Id. 18 Nw. Austin, 129 S. Ct. at Following the enactment of the Fifteenth Amendment, Congress passed the Enforcement Act of South Carolina v. Katzenbach, 383 U.S. 301, 310 (1966). The Act criminalized voter obstruction; however, enforcement of the laws became spotty and ineffective, and most of [the Act s] provisions were repealed in Id. Afterwards, Congress sought to address problems on a case-by-case litigation basis, but this approach also failed. Id. at The litigation process was slow and burdensome, sometimes requiring as many as six thousand man-hours of preparation. Id. Further, even when court orders were obtained, offenders would often respond by implementing more difficult tests, switching to new discriminatory devices, or simply ignoring the orders. Id. at Id. at 309. First, Congress felt itself confronted by an insidious and pervasive evil which had been perpetrated in certain parts of our country through unremitting and ingenious defiance of the Constitution. Id. Second, Congress concluded that the unsuccessful remedies which it had prescribed in the past would have to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment. Id. 20 See id U.S.C. 1973(a) (2008). 22 Katzenbach, 383 U.S. at 310. For example, section 4(a) suspended literacy tests and similar voting qualifications. Id. at 319. Additionally, the Act instituted strict procedures accompanied by broad federal review. Id. at Id. at 317. These jurisdictions were determined by a coverage formula set out in the Act. Id. For a state or separate political subdivision to be covered, two findings had to be made. Id. First, the jurisdiction maintained a 29

3 B. Surviving Constitutional Challenge Despite being backed by overwhelming congressional support, the Voting Rights Act quickly came under heavy constitutional fire. 25 Within a year of its enactment, South Carolina, backed by five covered states, 26 sought to invalidate the Act in South Carolina v. Katzenbach. 27 Thus, the Supreme Court had to decide whether these newly designed provisions operated as a constitutional enforcement of the Fifteenth Amendment. 28 In its opinion, the Court declared that the constitutionality of the Act must be judged with reference to the historical experience which it reflects. 29 The Court went on to describe this historical guidepost as one marked by years of rampant voter discrimination. 30 With this guidepost in mind, the Court held that the Act s remedies, including the section 5 preclearance requirement, were an appropriate means for carrying out Congress constitutional responsibilities and [were] consonant with all other provisions of the Constitution. 31 Further, the Court recognized that exceptional conditions can justify legislative measures not otherwise appropriate. 32 Justice Black dissented in part, believing that the broad coverage of section 5 rendered it unconstitutional. 33 The majority acknowledged that section 5 went beyond Fifteenth Amendment prohibition; however, it believed the section 4 bailout provision provided an adequate escape from potential inequities. 34 discriminatory test or device on November 1, Second, less than 50% of [the jurisdiction s] voting age residents were registered on November 1, 1964, or voted in the presidential election of November Id. (citing Voting Rights Act 4). 24 Id. at Preclearance requires that, within covered jurisdictions, all changes in state election procedures be approved by a federal court. 42 U.S.C. 1973(a) (2008). 25 See Katzenbach, 383 U.S. at Id. at 307, n.2. Alabama, Georgia, Louisiana, Mississippi, and Virginia supported South Carolina. Id. 27 Id. at 307. In its complaint, South Carolina sought an injunction against the enforcement of certain provisions in the Act. Id. 28 See id. at Id. at Id. The Court acknowledged the previous failed attempts at enforcement. Id; see also supra note 17 and accompanying text. The Court also highlighted the rampant use of disenfranchisement devices in states covered by the Act. Katzenbach, 383 U.S. at These included literacy tests, grandfather clauses, property qualifications, poll taxes, intimidation, and outright violence. Id. 31 Id. at Id. at 334 (citing Home Bldg. & Loan Ass n v. Blaisdell, 290 U.S. 398 (1934)). The Court went on to note that given the lack of compliance with federal court decrees, Congress had reason to believe that jurisdictions would continue their evasive techniques in the future; thus, under these unique circumstances, a complete ban on preclearance election changes was justified. Id. at Id. at (Black, J., concurring in part and dissenting in part). Overall, Justice Black expressed concerns over the Act s significant federalism costs. Id. at Id. at (majority opinion). To bailout, a covered jurisdiction has to fulfill extensive requirements. See 42 U.S.C. 1973b(a)(1)(A)-(E) (2008). Only seventeen out of twelve thousand eligible jurisdictions have successfully bailed out since DEP T OF COMMERCE, BUREAU OF CENSUS, 2002 CENSUS OF GOVERNMENTS, Vol. 1, No. 1, pp. 1,

4 While originally intended to be a temporary solution, Congress has reauthorized the Act several times with each previous enactment withstanding constitutional scrutiny. 35 The most recent extension in 2006 was challenged in Northwest Austin. 36 C. What Exactly Is A Political Subdivision? Section 4(b) of the Voting Rights Act permits a State or political subdivision to petition for bailout. 37 Section 14(c)(2) goes on to define the term political subdivision as any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish. 38 Further, the term also includes any other subdivision of the State which conducts registration for voting. 39 Notably, the Act does not place any section-specific applications. 40 Traditionally, statutory definitions govern the meaning of terms used within a statute. However, exceptions to this general rule do exist, and thus statutory definitions are not absolute. 41 In fact, a line of cases illustrates that the term political subdivision has deviated from its statutory definition. In United States v. Board of Commissioners of Sheffield, Alabama, the city argued that it was exempt from the section 5 preclearance requirement because it did not register its voters and therefore did not meet the statutory definition of a political subdivision. 42 The Court rejected this argument, concluding that the statutory definition was intended to apply only to the process of selecting covered jurisdictions. 43 This decision clearly stretched the term beyond its statutory definition. Soon thereafter, the Court reaffirmed this reading in Dougherty County, Georgia, Board of Education v. White, stating that once a State has been designated for coverage, [the statutory definition] has no operative significance in determining the reach of Later, in City of Rome v. United States, the Court took a different direction. 45 The Court ruled that a city attaining the statutory definition was not a political subdivision for bailout purposes because the city was located within a covered state that was not itself entitled to bailout. 46 This decision made the term more restrictive than its statutory definition. Hence, as illustrated in the cases above, the term political subdivision has been both over- and under-applied in reference to its statutory definition. 47 In 1982, City of Rome was overturned in part by an amendment to the bailout provision which declared that jurisdictions 35 See generally 42 U.S.C. 1973b (2008). 36 For the 2006 extension, see Pub. L. No , 3(d)(2), (e)(1), 4, 120 Stat Over time, the Act has remained largely the same; however, it is important to note that the baseline for 2006 coverage has stalled out at See 42 U.S.C. 1973b(b) (2008). 37 Id. 1973b(a)(1)(A). 38 Id. 1973l(c)(2). 39 Id. 40 Id. 41 Lawson v. Suwanee Fruit & S.S. Co., 336 U.S. 198, (1949) U.S. 110, (1978). 43 Id. at U.S. 32, 44 (1978) (quoting Sheffield, 435 U.S. at 126) U.S. 156, (1980). 46 Id. 47 See id. 31

5 within covered states could seek bailout. 48 problems. 49 However, this amendment eventually ran into its own III. NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT NUMBER ONE V. HOLDER A. Majority Opinion In Northwest Austin, the majority began its opinion by stating that the district was eligible for bailout under the Voting Rights Act. 50 Therefore, the Court concluded that it would not reach the issue of section 5 constitutionality. 51 Prior to its substantive discussion, the Court put the case in context by providing a historical background of the issues. 52 After confirming that the Fifteenth Amendment granted Congress the power of enforcement, the Court turned to the Voting Rights Act. 53 Then, after tracing the background of the Voting Rights Act, the Court turned to address the district s complaint. 54 The Court started by reversing the district court s ruling. 55 In doing so, the Court overturned the district court s conclusion that section 5 was constitutional; however, this result bore from procedure rather than merit. 56 Seeming to recognize this, the Court went on to address the constitutional issue despite having dismissed it as possible grounds for the Court s decision. 57 The Court praised the Act s achievements; however, the Court also recognized that section 5 impose[d] substantial federalism costs and went far beyond the prohibition of the Fifteenth Amendment. 58 Although these negative attributes were previously justified, the Court pointed out that some of the conditions it had relied on in earlier decisions had since improved. 59 In effect, the Court took the chance to assert its belief that things have changed in the South, and past success alone could not continue to justify the preclearance requirement. 60 Still, based on the principle of constitutional avoidance, the Court chose to settle the section 4 bailout issue 48 Pub. L. No , 2(a)-(c), 96 Stat (codified as amended at 42 U.S.C. 1973b(a)(1)). 49 See DEP T OF COMMERCE, supra note S. Ct. 2504, 2508 (2009). 51 Id. The Court stated that its usual practice is to avoid the unnecessary resolution of constitutional questions. Id. 52 Id. at Id. at Here, the Court outlined the problems that the Voting Rights Act sought to address and identified the preclearance requirement as a major contributor to the success of the Fifteenth Amendment. Id. After this acknowledgement, the Court conceded that both the section 5 preclearance requirement and its companion, the section 4 bailout provision, were intended to be temporary provisions; however, the Court went on to note their continued reauthorizations. Id. at Id. at Id. at 2508, Id. at As mentioned, the Court did not reach the issue because of the principle of constitution avoidance. Id. at Id. at Id. at 2511 (internal quotations omitted). 59 Id. 60 Id. 32

6 rather than tackle the broader constitutional question. 61 While the Court declined to resolve the issue, it still indicated that the preclearance requirement raised serious constitutional questions. 62 Turning to the statutory issue, the Court premised its discussion on the fact that the district was a political subdivision by normal definitions. 63 However, the Court also admitted that when viewed in isolation, the district likely would not meet the statutory definition. 64 Against this, the Court persuasively reasoned that we do not write on a blank slate. 65 The Court went on to describe the historical slate of political subdivision as used within the Voting Rights Act. 66 Immediately, the Court noted that case law showed the term did not always match its express definition. 67 Next, it established that all units in covered jurisdictions were required to comply with preclearance obligations despite the statutory language. 68 Continuing, the Court pointed out that political subdivisions within covered jurisdictions were now eligible for bailout. 69 From this, the Court adopted a symmetrical view of sections 4 and 5, finding that if all political subdivisions were subject to preclearance then all political subdivisions should be eligible for bailout. 70 Backed by this belief, the Court ultimately held that all political subdivisions not only those described in the [Act] [were] eligible to file a bailout suit. 71 B. Justice Thomas s Opinion Concurring in the Judgment in Part and Dissenting in Part In his opinion, Justice Thomas seconded the majority s constitutional concerns, but unlike the majority, he would have held that section 5 was unconstitutional. 72 First, Justice Thomas attacked the majority s reliance on the doctrine of constitutional avoidance. 73 He argued that the district sought relief in the form of bailout entitlement rather than bailout eligibility. 74 Thus, he argued that defining the district as a political subdivision would not provide the district with full relief; therefore, it would not have entirely disposed of the case on a non-constitutional ground. 75 Additionally, Justice Thomas noted that the majority s interpretation did not by itself render section 5 constitutional. 76 Hence, he argued that the court s decision was not based on the traditional avoidance scenario where a court must choose between two plausible interpretations, 61 Id. at The Court ended its constitutional discussion by addressing Justice Thomas s argument in opposition to the majority s reliance on the principle of constitutional avoidance. Id. at There was disagreement regarding the exact relief sought. See supra note 6. Ultimately, this interpretation was crucial to settling the constitutional decision. Northwest Austin, 129 S. Ct. at Id. 63 Id. at Id. 65 Id. 66 Id. 67 Id. at Id. at Id. at Id. 71 Id. The Court was also convinced that lack of bailout success indicated a system that Congress did not intend. Id. 72 Id. at 2517 (Thomas, J., concurring in part and dissenting in part). 73 Id. at Id. at Id. at This is what the majority purports to do. Id. at 2513 (majority opinion). 76 Id. at 2518 (Thomas, J., concurring in part and dissenting in part). 33

7 one constitutional and one unconstitutional. 77 Further, Justice Thomas asserted that the strict bailout requirements may very well be unconstitutional; therefore, ruling for bailout entitlement might not even settle the constitutional issue. 78 Justice Thomas ended his opinion by reasserting his belief that it was necessary to resolve the constitutional issue. 79 Noting the success of the Voting Rights Act, he reiterated the majority s concern that section 5 prohibited much more than the Fifteenth Amendment addressed. 80 He identified the costs associated with this encroachment and argued that the constitutionality of the Fifteenth Amendment has always depended on the proven existence of intentional discrimination that would render a case-by-case analysis impossible. 81 Next, he argued that evidence of this discrimination no longer existed, and its absence undermined any basis for retaining section Ultimately, Justice Thomas concluded that acknowledging the unconstitutionality of section 5 would represent a victory rather than a sign of defeat. 83 IV. DISCUSSION The Supreme Court, in deciding Northwest Austin, took the well-trodden path of constitutional avoidance. 84 Hence, at first glance, this decision seems to indicate an opinion lacking in much precedential value. Indeed, the Court interpreted the Voting Rights Act to render all political subdivisions eligible for bailout; however, given the extremely low number of successful bailouts, increased bailout eligibility seems unlikely to result in any significant increase in bailout entitlement. 85 Further, when considering the burden of the preclearance requirements, this appears to be a nearly impossible bar. 86 On the other hand, the Court s continued adherence to the principle of constitutional avoidance is of some precedential value. In fact, the interesting thing about this case is that the further one gets from the majority s holding, the greater the potential for future impact is. For example, even as the Court purports to dismiss the constitutional issue, it seems to quietly lay the groundwork for a constitutional challenge of section The Court goes beyond its holding, noting that conditions once justifying the Act have changed such that its continued existence now raises serious constitutional concerns. 88 Though dicta, this will undoubtedly be addressed as newly bailout eligible districts run into the reality of bailout entitlement. The majority s negative view of the Act gives substantial support to Justice Thomas s opinion. 89 After all, the Court never attacks Justice Thomas s constitutional argument; rather, its 77 Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at 2513 (majority opinion). 85 Id. at 2516; see supra note See Northwest Austin, at (Thomas, J., concurring in part and dissenting in part). 87 See generally id. at (majority opinion). 88 Id. 89 See generally id. at

8 refusal to address the constitutional issue is based on internal procedure. 90 Based on the fact that the opinions shared the same constitutional concerns, it seems to reason that if the Court had adopted either of Justice Thomas s arguments against applying the doctrine of constitutional avoidance then the Voting Rights Act would have been constitutionally marred. 91 V. CONCLUSION The Voting Rights Act of 1965 was a congressional backlash against one hundred years of flagrant disregard for the Fifteenth Amendment. Hugely successful, the Act s broad federal reach was upheld in Katzenbach based on exceptional circumstances. Despite its success, the Voting Rights Act was called into question again in Northwest Austin. Following this most recent clash, the Act remained physically intact thanks to a statutory interpretation entitling all political subdivisions to bailout eligibility. However, though physically intact, the Act did not emerge unscathed. In dicta, the majority expressed serious concerns over whether the exceptional conditions once justifying the Act still existed. Running with these concerns, Justice Thomas s opinion went so far as to declare the Act unconstitutional. Ultimately, the principle of constitutional avoidance prevented the majority from reaching a similar conclusion, but in the end, the Voting Rights Act might very well be one step away from a well-earned retirement. Bryan A. Jones 90 Id. at See id. at (Thomas, J., concurring in part and dissenting in part). 35