Northwest Austin Municipal Utility District No. One v. Holder

The D.C. Circuit’s Decision Upholding the Validity of the Voting Rights Act of 2006

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision in the Voting Rights Act of 2006. That provision imposes a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Attorney General for any changes in their election laws.

Before we discuss that argument, we will review the decision that was the subject of that argument: the U.S. Court of Appeals for the D.C. Circuit’s decision in Shelby County, Alabama v. Holder upholding, 2 to 1, the constitutionality of that statute and, therefore, affirming the trial court’s judgment to the same effect.[1]

Judge Thomas Griffith — Judge Thomas B. Griffith

The opinion for the majority in the Circuit Court was written by Judge David S. Tatel, a President Clinton appointee in 1994 and a University of Chicago Law School classmate and friend of mine. He was joined by Circuit Judge Thomas B. Griffith, an appointee of President George W. Bush in 2005, while the dissenter was Circuit Judge Stephen F. Williams, an appointee in 1994 by President Reagan.

Opinion of the Circuit Court

The D.C. Circuit stressed that it was “bound by fundamental principles of judicial restraint” as repeatedly proclaimed by the U.S. Supreme Court. These precedents emphasize that “Congress’s laws are entitled to a ‘presumption of validity’” and that “when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments [including the Fifteenth Amendment], its judgments about ‘what legislation is needed . . . are entitled to much deference.‘“ Such deference is paid “‘out of respect for [Congress’] . . . authority to exercise the legislative power,’”and in recognition that Congress ”‘is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.’” (Citations omitted.)

Indeed, the Circuit Court quoted the Supreme Court’s opinion in deciding a prior case about this very statute when that Court emphasized that “judging the constitutionality of an Act of Congress is `the gravest and most delicate duty that [a court] is called on to perform,’'” and that “[t]he Fifteenth Amendment empowers `Congress,’ not the Court, to determine in the first instance what legislation is needed to enforce it.”

These long-standing principles of judicial restraint, I believe, are even more relevant and important, when Congress adds congressional findings of fact to the statute itself, as it did in the Voting Rights Act of 2006.

The D.C. Circuit then addressed the two concerns or questions about the Voting Rights Act of 2006 that the Supreme Court had raised in the Northwest Austin case.

First, are the current burdens imposed by section 5 “justified by current needs”?

Even though there has been significant progress in combatting racial discrimination in voting, the D.C. Circuit stressed that “Congress [had] found that this progress did not tell the whole story.

It documented ‘continued registration and turnout disparities’ in both Virginia and South Carolina.” In addition, “although the number of African Americans holding elected office had increased significantly, they continued to face barriers to election for statewide positions. Congress found that not one African American had yet been elected to statewide office in Mississippi, Louisiana, or South Carolina. In other covered states, “`often it is only after blacks have been first appointed to a vacancy that they are able to win statewide office as incumbents.'”

The D.C. Circuit also noted that “Congress considered other types of evidence that, in its judgment, ‘show[ed] that attempts to discriminate persist and evolve, such that Section 5 is still needed to protect minority voters in the future.’ It heard accounts of specific instances of racial discrimination in voting. It heard analysis and opinions by experts on all sides of the issue.”

Congress considered six distinct categories of evidence, according to the D.C. Circuit: “(1) [U.S.] Attorney General objections issued to block proposed voting changes that would, in the Attorney General’s judgment, have the purpose or effect of discriminating against minorities; (2) ‘more information requests’ issued when the Attorney General believes that the information submitted by a covered jurisdiction is insufficient to allow a preclearance determination; (3) successful lawsuits brought under section 2 of the Act; (4) federal observers dispatched to monitor elections under section 8 of the Act; (5) successful section 5 enforcement actions filed against covered jurisdictions for failing to submit voting changes for preclearance, as well as requests for preclearance denied by the United States District Court for the District of Columbia; and (6) evidence that the mere existence of section 5 deters officials from even proposing discriminatory voting changes.”

Finally, said the D.C. Circuit, “Congress heard evidence that case-by-case section 2 litigation was inadequate to remedy the racial discrimination in voting that persisted in covered jurisdictions.”

The Circuit court then carefully reviewed the legislative record and concluded that it contained “sufficient probative evidence from which Congress could reasonably conclude that racial discrimination in voting in covered jurisdictions is so serious and pervasive that section 2 litigation remains an inadequate remedy.”

Second, does the congressional record support the requisite ‘showing that the statute’s disparate geographic coverage is sufficiently related to the problem that it targets?

In addressing this issue, the Circuit court emphasized that the statute’s disparate geographic coverage depended not only on section 4(b)’s formula, but on the statute as a whole, including its mechanisms for bail-in and bailout. Therefore, for this court the question was whether the statute as a whole, not just the section 4(b) formula, ensures that jurisdictions subject to section 5 are those in which unconstitutional voting discrimination is concentrated.

After reviewing in detail the congressional record on this issue and the total structure of the statute, including bailout and bail-in, the D.C. Circuit concluded that the statute “continues to single out the jurisdictions in which discrimination is concentrated.”

Dissenting Opinion

The dissenting opinion of Judge Williams concluded that the formula in section 4(b) of the statute was unconstitutional because the significant burdens it imposed on “covered jurisdictions” were not “congruent and proportional” to the problems of racially discriminatory voting laws that it targeted.

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[1] Prior posts examined the original Voting Rights Act of 1965, the Voting Rights Act of 2006 and the prior U.S. Supreme Court case regarding the latter statute.

Prior U.S. Supreme Court Case Regarding the Voting Rights Act of 2006

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006. [1] That provision imposes a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Department of Justice for any changes in their election laws.

Prior posts have reviewed the original Voting Rights Act of 1965 and its extension in the Voting Rights Act of 2006. Before we discuss the recent Supreme court argument, we now look at another of its predicates: the previous Supreme Court decision regarding the Voting Rights Act of 2006: Northwest Austin Municipal Utility District No. One v. Holder. [2]

Opinion of the Court

The opinion for the Court was written by Chief Justice John Roberts, who was joined by seven Associate Justices (Stevens, Scalia, Kennedy, Souter, Ginsburg, Breyer and Alito).

The Roberts opinion interpreted the statute as reauthorized in 2006 to allow any covered jurisdiction, including the utility district bringing suit in that case, to seek bailout, thus avoiding the need to resolve whether the 25-year reauthorization in 2006 was constitutional.

As a result, the rest of the opinion’s extensive discussion of constitutional concerns over the 2006 statute technically are dicta, but the Supreme court’s dicta are obviously important for the lower federal courts and legal observers to see which way the winds are blowing.

The opinion paid at least verbal homage to the longstanding legal principles that “judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that this Court is called on to perform’” and that “Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States.’” Moreover, Roberts emphasized that “the Fifteenth Amendment empowers ‘Congress,’ not the Court, to determine in the first instance what legislation is needed to enforce it.”

Roberts acknowledged that in 1965 when the original statute was 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” and that the Court had upheld the constitutionality of the original statute and its extensions through 2006.

However, Roberts left the distinct impression that at least he thought that since 2006 the work of abolishing racial discrimination in voting was over.

He said, “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.” Moreover, “many of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [original Voting Rights Act] have been eliminated.” 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. Similar dramatic improvements have occurred for other racial minorities.”

“These improvements are no doubt due,” the opinion stated, “in significant part to the [original] Voting Rights Act itself [as extended through 2006] , and stand as a monument to its success.”

Almost offhandedly the opinion conceded, “It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act.”

And the opinion did say that “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.’ The District Court also found that the record “demonstrat[ed] that section 5 prevents discriminatory voting changes’ by ‘quietly but effectively deterring discriminatory changes.’”

But Roberts did not refer to, quote or discuss the extensive congressional findings in the Voting Rights Act itself that fighting voter racial discrimination was not finished.

The Court’s opinion identified two “serious . . . questions” about section 5’s continued constitutionality, namely, whether the “current burdens” it imposes are “justified by current needs,” and whether its “disparate geographic coverage is sufficiently related to the problem that it targets.”

These burdens, said the opinion, were the “federal intrusion into sensitive areas of state and local policymaking.” Section 5, it continued, “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, and in particular to every political subdivision in a covered State, no matter how small.”

The second problem identified by Roberts stemmed from the statue’s differentiation “between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” Such “distinctions can be justified in some cases. 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.”

Opinion of Justice Clarence Thomas

Associate Justice Clarence Thomas filed a separate opinion in this case, concurring in the judgment in part and dissenting in part.

Thomas said, “the Court’s statutory decision does not provide appellant with full relief” and, therefore, he concludes, “it is inappropriate to apply the constitutional avoidance doctrine in this case. I would therefore decide the constitutional issue presented and hold that §5 exceeds Congress’ power to enforce the Fifteenth Amendment.” The latter conclusion was based upon his assertion that there was a “lack of current evidence of intentional discrimination with respect to voting.”

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[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.

[2] Another predicate to the recent Supreme court argument will be discussed in a future post: the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit that is the subject of the recent argument in the Supreme Court (Shelby County, Alabama v. Holder).

The Voting Rights Act of 2006

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006. [1] This provision extended for 25 years a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Department of Justice for any changes in their election laws.[2]

Before we discuss that argument, we will look at the Voting Rights Act of 2006.[3]

Its stated Purpose in Section 2(a) was “to ensure that the right of all citizens to vote, including the right to register to vote and cast meaningful votes, is preserved and protected as guaranteed by the Constitution.” The last reference, of course, included the Constitution’s Fifteenth Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

The 2006 statute did that by reauthorizing and extending for 25 years (until 2032) the following essential provisions of the original Voting Rights Act of 1965:

Section 2 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.” Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result.
Section 5 (the focus of the current case before the Supreme Court) only applies to certain “covered jurisdictions” and “prescribes remedies . . . which go into effect without any need for prior adjudication.” Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the [U.S.] Attorney General.”
Such approval or preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.”
The “covered jurisdictions” subject to section 5 were identified in section 4(b), as subsequently modified, as any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.”
Upon satisfying certain criteria a state or other jurisdiction could obtain “bailout” from section 5 or be subject to “bail-in” to such coverage.

The Voting Rights Act of 2006 was overwhelmingly adopted by the Congress: 98 to 0 in the Senate and 390 to 33 (with 9 not voting) in the House. In doing so, the Congress acted on the basis of a legislative record over 15,000 pages in length, including statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.[4]

Given this extensive record before Congress, Section 2(b) of the Voting Rights Act of 2006 contains the following extensive congressional Findings:

“(1) Significant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.

“(2) However, vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process.

“(3) The continued evidence of racially polarized voting in each of the jurisdictions covered by the expiring provisions of the Voting Rights Act of 1965 demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection of the Voting Rights Act of 1965.

“(4) Evidence of continued discrimination includes—

“(A) the hundreds of objections interposed, requests for more information submitted followed by voting changes withdrawn from consideration by jurisdictions covered by the Voting Rights Act of 1965, and section 5 enforcement actions undertaken by the Department of Justice in covered jurisdictions since 1982 that prevented election practices,such as annexation, at-large voting, and the use of multimember districts, from being enacted to dilute minority voting strength;

“ (B) the number of requests for declaratory judgments denied by the United States District Court for the District of Columbia;

“(C) the continued filing of section 2 cases that originated in covered jurisdictions; and

“(D) the litigation pursued by the Department of Justice since 1982 to enforce sections 4(e), 4(f)(4), and 203 of such Act to ensure that all language minority citizens have full access to the political process.

“(5) The evidence clearly shows the continued need for Federal oversight in jurisdictions covered by the Voting Rights Act of 1965 since 1982, as demonstrated in the counties certified by the Attorney General for Federal examiner and observer coverage and the tens of thousands of Federal observers that have been dispatched to observe elections in covered jurisdictions.

“(6) The effectiveness of the Voting Rights Act of 1965 has been significantly weakened by the United States Supreme Court decisions in Reno v. Bossier Parish II and Georgia v. Ashcroft, which have misconstrued Congress’ original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by section 5 of such Act.

“(7) Despite the progress made by minorities under the Voting Rights Act of 1965, the evidence before Congress reveals that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.

“(8) Present day discrimination experienced by racial and language minority voters is contained in evidence, including the objections interposed by the Department of Justice in covered jurisdictions; the section 2 litigation filed to prevent dilutive techniques from adversely affecting minority voters; the enforcement actions filed to protect language minorities; and the tens of thousands of Federal observers dispatched to monitor polls in jurisdictions covered by the Voting Rights Act of 1965.

“(9) The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.”

On July 27, 2006, President George W. Bush signed this statute in a ceremony on the South Lawn of the White House (as shown in the photo to the left). Attending the event were Attorney General Alberto Gonzalez and other members of the Cabinet, the leaders of the United States Senate and House of Representatives, representatives of the Fannie Lou Hamer family, representatives of the Rosa and Raymond Parks Institute, members of the Martin Luther King, Jr. family and civil rights leaders, including Dr. Dorothy Height, Julian Bond (the Chairman of the NAACP), Bruce Gordon, Reverend Lowery, Marc Morial, Juanita Abernathy, Jesse Jackson, Al Sharpton and Dr. Benjamin and Frances Hooks.

On that occasion President Bush said, “By reauthorizing this act, Congress has reaffirmed its belief that all men are created equal; its belief that the new founding started by the signing of the [Voting Rights Act of 1965] . . . by President Johnson is worthy of our great nation to continue.”

That original statute, President Bush continued, “rose from the courage shown on a Selma bridge one Sunday afternoon in March of 1965 . . . [when] African Americans . . . marched across the Edmund Pettus Bridge in a protest intended to highlight the unfair practices that kept them off the voter rolls.The brutal response [to the marchers that day] . . . stung the conscience of a slumbering America. . . . One week after Selma, President Lyndon Johnson took to the airwaves to announce that he planned to submit legislation that would bring African Americans into the civic life of our nation. Five months after Selma, he signed the Voting Rights Act [of 1965] into law in the Rotunda of our nation’s capitol.”

President Bush recognized that in the “four decades since the Voting Rights Act was first passed, we’ve made progress toward equality, yet the work for a more perfect union is never ending.” By signing the Voting rights Act of 2006, President Bush concluded, we “renew a bill that helped bring a community on the margins into the life of American democracy. My administration will vigorously enforce the provisions of this law, and we will defend it in court.”

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[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. 109-246, 120 Stat. 577 (2006).

[2] The states now subject to section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

[3] A prior post discussed the original Voting Rights Act of 1965. Other posts will discuss two other predicates for the recent Supreme Court argument: the previous Supreme Court case regarding the 2006 statute (Northwest Austin Municipal Utility District No. One v. Holder) and the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit that is the subject of the that argument (Shelby County, Alabama v. Holder).

[4] The 2006 Act also overruled two Supreme Court decisions interpreting the statute.