The first sentence of the Chief Justice’s opinion in Northwest Austin Municipal Utility District No. 1 v. Holder describes what was at stake: “The plaintiff in this case is a small utility district raising a big question–the constitutionality of Section 5 of the Voting Rights Act.” Section 5 requires that any political subdivision located in a state that is subject to the Voting Rights Act (most of them in the South) must seek preclearance from the Department of Justice before it can change its electoral process. One of the ways in which preclearance has been used is to determine whether congressional and/or legislative district maps violate the Voting Rights Act. The most significant preclearance ruling that affected Texas in recent years was the decision by the Justice Department that upheld the midcensus congressional redistricting plan of 2003. However, when a lawsuit challenging the map reached the Supreme Court in 2006, the Court struck down the splitting of Webb County, with the result that incumbent Republican congressman Henry Bonilla lost his race for reelection later that year to Democrat Ciro Rodriguez. Northwest Austin MUD is a small utility district, and it did not want to have to hire lawyers to wage an expensive fight that could include not only preclearance but also a court challenge before it could hold an election. It sought relief on two grounds. One was a direct attack on the constitutionality of Section 5. The other was to avail itself of a provision of the Voting Rights Act that allows political subdivisions with no history of unlawful discrimination to “bail out” from the preclearance requirement. This is no bargain. The process for bailing out requires the jurisdiction to bring suit for a declaratory judgment before a three-judge District Court in Washington, D.C. The subdivision must show that, for the previous ten years, (1) it has not used any forbidden voting test; (2) it has not been subject to any valid objection under Section 5; and (3) that it has “engaged in constructive efforts to eliminate intimidation and harassment,” whatever that vague phrase might be construed to require. Even if a political subdivision wins its suit for declaratory judgment, the District Court retains jurisdiction over the case for ten years and can reinstate the coverage of the Voting Rights Act if it finds a violation. For a small political subdivision like NWA MUD, the legal fees would be onerous. NWA MUD did pursue its bailout remedy by bringing suit before a DC District Court — and it lost. The case reached the Supreme Court on an appeal from that decision. The decisive legal point in this case was whether the utility district constituted a subdivision. The Voting Rights Act says: “[P]olitical 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 othger subdivision of a State which conducts registration for voting.” The District Court ruled that this definition applied to the bailout provision, and that the utility district did not qualify, since it was not a county or parish and did not conduct its own voter registration. This is the specific holding that the Supreme Court reversed. I think that the District Court ruled correctly. In order to overrule the District Court, Roberts has to go through some tortured reasoning that relies more on rhetoric than precedent. First, he quotes from a 1949 case: “Statutory definitions control the meaning of statutory words, of course, in the usual case. But this is an unusual case.” Whenever a judge writes such things, you know that he is reaching to justify the result he wants to reach. The next thing Roberts says is: “Were the scope of [the bailout provision] considered in isolation from the rest of the statute and our prior cases, the District Court’s approach might well be correct. [Indeed — pb] But here specific precedent, the structure of the Voting Rights Act, and underlying constitutional concerns compel a broad reading of the bailout provisions.” Roberts continues, “Our decisions have already established that the [statutory definition] does not apply to every use of the term “political subdivision” in the Act.” The Chief Justice eventually concludes that all political subdivisions, not just those that meet the statutory definition, are eligible to file bailout suits. “Since 1982,” he writes, 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 …. We therefore hold that all political subdivisions, not only those described in [the statutory definition] — are eligible to file a bailout lawsuit.” That’s where Roberts wants to go, and he gets there without having to address the big issue of whether Section 5 of the Voting Rights Act is unconstitutional: “[That] constitutional question has attracted ardent briefs from dozens of interested parties, but the importance of the question does not justify our rushing to decide it. Quite the contrary: Our usual practice is to avoid the unnecessary resolution of constitutional questions. We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of Section 5.” This statement has been described by commentators as a “punt,” or that Roberts “blinked.” * * * * Let’s move on to the big issue, which is the constitutionality of the preclearance provision. The constitutional issue was laid out by former University of Texas law professor Samuel Isaacharoff (now at New York University) in testimony before Congress in 2006, as lawmakers debated whether to extend the Voting Rights Act by 25 years: [T]he Supreme Court [has] confined the reach of Congress’ remedial authority under the Fourteenth and Fifteenth Amendments – its ability to reach beyond the direct commands of those Amendments – by demanding from Congress some evidence of “congruence and proportionality” between its remedial legislation and the constitutional aims that Congress seeks to advance. The Court has given Congress wide berth in addressing manifest injustices in the core areas of the Fourteenth and Fifteenth Amendments. But it is far from clear that the injustices that justified Section 5 in 1965 can justify its unqualified reenactment today. The very effectiveness of the Voting Rights Act, and the immediacy of its impact in 1965, is a source of constitutional vulnerability today. The bulk of the coverage under Section 5 is triggered by voter turnout figures from 1964, a date that seems remote in 2007, and risks appearing constitutionally antiquated by the proposed next expiration date of 2032. By 2032, the youngest eligible voter from 1964 will be 86 years old. [To read Isaacharoff’s complete testimony, click here.] Roberts did not try to conceal his concerns about the Voting Rights Act. The language that I am about to quote lays the predicate for a future attack on Section 5: The historic accomplishments of the Voting Rights Act are undeniable. When it was first 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. Today the registration gap 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…. At the same time, Section 5, which authorizes federal intrusion into sensitive areas of state and local policymaking, imposes substantial “federalism costs.” These federalism costs have caused Members of this Court to express serious misgivings about the constitutionality of Section 5. [Much of this language is lifted from previous decisions of the Court; I have omitted the citations.] Section 5 goes beyond the prohibition of the Fifteenth Amendment by suspending all [emphasis original] changes to state election laws — 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. Some of the conditions that we relied upon in upholding this statutory scheme [citations omitted] 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. 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 …. 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.” 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. But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparite geographic coverage is sufficiently related to the problem that it targets…. The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The 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. For example, the racial gap in voter registration and turnout is lower in the States originally covered by Section 5 than it is nationwide…. To say that the Chief Justice is skeptical about the “current needs” of Section 5 is to belabor the obvious. Some commentators, upon examining Roberts’ dicta, above, believe that Section 5’s life expectancy is short. I’m not so sure. Roberts thinks it is unconstitutional. That is clear. But I don’t think that he is in any rush to strike it down. The NWA MUD ruling gives new life to the bailout option. I think that the Court will wait and watch how that works. Roberts crafted an 8-1 consensus, including the entire liberal faction of the Court, for avoiding the big constitutional question in favor of strengthening the bailout option. We may see a spate of successful bailout lawsuits. This would relieve a lot of the pressure on Section 5. Does the Chief Justice really want to be remembered as the person who struck down the Voting Rights Act, an historic and world-changing piece of legislation? Is this the hill he wants to die on? Sometimes punting and blinking are the best options.
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