June 22, 2009

Supreme Court Decides Northwest Austin Municipal Utility District Number One v. Holder

The Voting Rights Act (VRA) has survived another constitutional challenge—but just barely. On June 22, 2009, the Supreme Court decided Northwest Austin Municipal Utility District Number One v. Holder, No. 08-322.

Northwest Austin Municipal Utility District Number One delivers city services to residents of a portion of Travis County, Texas. It has five board members who serve four-year terms. The district does not register voters, but is responsible for its own elections, although the elections are administered by Travis County. Because the district is located in Texas, which is a covered jurisdiction under the VRA, the district is subject to the preclearance requirements of § 5 of the VRA. That requires the district to obtain approval from a three-judge panel in Washington, D.C. whenever the district wants to make any change to its elections.

The district filed a lawsuit seeking relief from the preclearance requirements. The district relied on § 4 of the VRA, which contains a "bailout" provision that allows the release of a "political subdivision" from the preclearance requirements if certain conditions are met. The district also argued that if it did not qualify for bailout as a "political subdivision," the VRA's preclearance requirements are unconstitutional. The three-judge panel rejected both arguments, holding that the district did not qualify for bailout and therefore had to comply with the preclearance requirements.

The Supreme Court reversed the lower court's judgment. The Court began by lauding the effectiveness of the VRA in dramatically reducing discrimination in the voting process nationwide. "Things have changed in the South," the Court observed, and matters have "unquestionably improved" because "[b]latantly discriminatory evasions of federal decrees are rare [and] minority candidates hold office at unprecedented levels." But the Court also said that it is precisely because of those successes that the preclearance requirements of § 5 may no longer be justified. Section 5 has always imposed "substantial ‘federalism costs'" that have led to concerns about the constitutionality of § 5 for some time. According to the Court, "the Act imposes current burdens and must be justified by current needs," and cannot be justified by conditions that existed when it was enacted more than 40 years ago.

But the Court held that the doctrine of constitutional avoidance (i.e., interpreting laws, if possible, in a way that makes them constitutional) trumped the constitutional concerns about § 5. Section 4(b) of the VRA allows a "State or political subdivision" to seek a bailout from the preclearance provisions. There was no dispute that the district was a political subdivision of Texas in the ordinary sense of that term. The problem is that § 14(c)(2) of the VRA defines political subdivision to mean "any county or parish" or any other subdivision of a state that conducts registration for voting without the supervision of a county or parish. The district does not satisfy that definition of political subdivision. But the Court held that the definition of political subdivision in § 14(c)(2) does not apply to every use of the term political subdivision in the VRA. For example, the Court has held for years that political subdivisions that do not fall within the § 14 definition of political subdivision are nonetheless subject to the preclearance requirements of § 5 because the term political subdivision in § 5 was intended to reach more broadly than the definition in § 14. The same holding with respect to the term political subdivision in the § 4 bailout provisions would be just as logical, and would save the VRA from profound constitutional problems, the Court held. Thus, the Court held that all political subdivisions of a state, and not only those described in § 14(c)(2), are eligible to seek bailout under § 4.

Chief Justice Roberts delivered the opinion for the Court, in which Justices Stevens, Scalia, Kennedy, Souter, Ginsburg, Breyer and Alito joined. Justice Thomas filed an opinion partially concurring and partially dissenting.

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