Yesterday the Supreme Court handed down its decision in Northwest Austin Municipal Utility District Number One v. Holder, a case that had been closely watched because the Utility District was challenging the constitutionality of the preclearance requirement of the 1965 Voting Rights Act. The Court ruled in favor of the District, but it did not reach the constitutional issue. Instead the Court interpreted the statute in such a way as to allow the District's lawsuit to go forward, delaying for another day the question as to whether the law is unconstitutional.
The Voting Rights Act requires certain states and political subdivisions to obtain "preclearance" of any changes in their election laws or procedures from the United States Department of Justice. The Municipal Utility District of Austin, Texas, wanted to make some changes in the laws governing its elections but it did not want to have to obtain permission from the federal government. The Voting Rights Act contains a provision allowing "political subdivisions" to "bailout" of the preclearance requirement, but another section of the Act defines "political subdivision" as excluding entities like the Utility District that are not responsible for registering voters. One of the claims that the Utility District made in this case was that despite this statutory language it should be allowed to "bailout" of the preclearance procedure. The Utility District also raised a vitally important constitutional claim – it contended that the Voting Rights Act is unconstitutional. The lower courts ruled against the Utility District on both counts, but the Supreme Court found in favor of the Utility District on its statutory claim and did not rule on the constitutional question. The decision of the Court interpreting the statute so as to allow the Utility District to opt out of the preclearance procedures isn't very persuasive, and the Court admits that it construed the statute as it did in order to avoid ruling on the constitutional issue.
The real significance of this case is that the Court signaled that it has serious doubts about the constitutionality of the Voting Rights Act. The Court reasoned that the law was probably justified when it was adopted, but that it may not be constitutional today because conditions have changed – that discrimination in voting on the basis of race is no longer a problem in America. In his opinion joined by seven other justices, Chief Justice Roberts expressed three reasons why the law might not be constitutional:
1. Election law and voter registration are matters which are committed to the states, not the federal government;
2. There may no longer be a sufficient justification for the law – if the states and political subdivisions are no longer discriminating on the basis of race then Congress has no power to impose the preclearance requirement;
3. The law itself discriminates among the states – it only applies to states (mainly in the South) where there was evidence of discrimination in 1972.
Here is the relevant portion of Chief Justice Roberts' opinion explaining points 2 and 3:
Some of the conditions that we relied upon in upholding this statutory scheme in Katzenbach and City of Rome have unquestionably improved. 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. See generally H. R. Rep. No. 109-478, at 12-18.
These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements. See Issacharoff, Is Section 5 of the Voting Rights
Act a Victim of Its Own Success? 104 Colum. L. Rev. 1710 (2004). It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.The Act also differentiates between the States, despite our historic tradition that all the States enjoy "equal sovereignty." United States v. Louisiana, 363 U. S. 1, 16 (1960) (citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see also Texas v. White, 7 Wall. 700, 725-726 (1869). Distinctions can be justified in some cases. "The doctrine of the equality of States . . . does not bar . . . remedies for local evils which have subsequently appeared." Katzenbach, supra, at 328-329 (emphasis added). 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.
Also of interest in this case is that the Court speculates about what the proper standard of review should be in evaluating the constitutionality of the Voting Rights Act – in other words, just how much discretion does Congress have to enact laws protecting against racial discrimination in voting and voter registration? Section 2 of the Fifteenth Amendment to the Constitution gives Congress the power to enact "appropriate legislation" to combat the problem, but the Court has never decided how much evidence of discrimination there has to be before Congress may act. Does the federal government have to prove in court that there are widespread and systematic irregularities in voter registration or election procedures in order to justify a law addressing the problems, or should the courts assume that any laws that Congress enacts on this subject are constitutional? Roberts' opinion for the Court discussed this question in the following passage:
The parties do not agree on the standard to apply in deciding whether, in light of the foregoing concerns, Congress exceeded its Fifteenth Amendment enforcement power in extending the preclearance requirements. The district argues that "‘[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,'" Brief for Appellant 31, quoting City of Boerne v. Flores, 521 U. S. 507, 520 (1997); the Federal Government asserts that it is enough that the legislation be a "‘rational means to effectuate the constitutional prohibition,'" Brief for Federal Appellee 6, quoting Katzenbach, supra, at 324. That question has been extensively briefed in this case, but we need not resolve it. The Act's preclearance requirements and its coverage formula raise serious constitutional questions under either test.
The Chief Justice closed his opinion with these words:
More than 40 years ago, this Court concluded that "exceptional conditions" prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. Katzenbach, 383 U. S., at 334. In part due to the success of that legislation, we are now a very different Nation. 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.
The Court's extensive discussion about the constitutionality of the preclearance requirement of the Voting Rights Act is remarkable – remember that the Court decided this case on statutory grounds and did not reach the question as to the constitutionality of the law. Nevertheless, Roberts' opinion, representing the views of eight members of the Court, reads as if he was prepared to declare the preclearance requirement unconstitutional. The ninth Justice, Clarence Thomas, dissented on the ground that the Court should immediately strike down the preclearance requirement. The Court's decision in this case is a strong indication that it Court will do just that the next time this issue is presented to the Court.
