Northwest Austin Municipal Utility District Number One v. Mukasey (08-322)

Oral argument: Apr. 29, 2009

Appealed from: United States District Court for the District of Columbia (May 30, 2008)


Congress passed the Voting Rights Act to enforce the dictates of the Fifteenth Amendment-that all Americans had the fundamental right to vote, regardless of "race, color, or previous condition of servitude." When the VRA was first enacted in 1965, the original intent was that §§ 4 and 5 would be temporary measures against particular states which would phase out after several years of remedial work. Congress, however, took a different route, and extended these "temporary" measures repeatedly, while broadening their scope to cover more states and political subdivisions. Several jurisdictions, like Northwest Austin Municipal Utility District Number One ("District"), are trying to exempt themselves from these requirements, arguing that these measures are anachronistic and too burdensome. After the District Court for the District of Columbia rejected the District's claim, the case is before the Supreme Court on appeal. Is it still necessary for the federal government to regulate state and local governments to prevent discriminatory voting practices? This case might serve as a vehicle for the Supreme Court to answer that question.

Question(s) Presented

Whether §4(a) of the Voting Rights Act, which permits "political subdivisions" of a State covered by §5's requirement that certain jurisdictions preclear changes affecting voting with the federal government to bail out of §5 coverage if they can establish a ten-year history of compliance with the VRA, must be available to any political subunit of a covered State when the Court's precedent requires "political subdivision" to be given its ordinary meaning throughout most of the VRA and no statutory text abrogates that interpretation with respect to §4(a).

Whether, under the Court's consistent jurisprudence requiring that remedial legislation be congruent and proportional to substantive constitutional guarantees, the 2006 enactment of the §5 preclearance requirement can be applied as a valid exercise of Congress's remedial powers under the Reconstruction Amendments when that enactment was founded on a congressional record demonstrating no evidence of a persisting pattern of attempts to evade court enforcement of voting rights guarantees in jurisdictions covered only on the basis of data 35 or more years old, or even when considered under a purportedly less stringent rational-basis standard.



Is Northwest Austin Municipal Utility District Number One eligible as a "political subdivision" under §4(a) of the Voting Rights Act to bail out of §5's preclearance requirement?

Did Congress provide enough evidence of an existing pattern of discrimination in voting practices to justify the extension of §5 in the 2006 Amendments?



In 1965, Congress passed the Voting Rights Act ("VRA") under § 2 of the Fifteenth Amendment to the U.S. Constitution. The VRA prohibited state actors from imposing discriminatory practices that cut into the voting rights of citizens. Congress specifically intended for the VRA to address the disenfranchisement of African-Americans by southern states who used literacy tests to prevent black citizens from voting. See Northwest Austin Municipal Utility District Number One, 573 F. Supp. 2d 221, 224 (2008). The VRA provides nationwide protection of voting rights, but also supplies additional oversight to specific states and political subdivisions with "particularly egregious histories of racial discrimination in voting." See id. at 225. Section 5 of the VRA prohibits these "covered jurisdictions" from changing any voting law without first going through a process called preclearance. See id. This means that covered jurisdictions must get approval of any changes from the federal government through either the U.S. Attorney General or a U.S. District Court before those changes can go into effect. See id. Section 4(b) of the VRA outlines a two-part test that establishes which jurisdictions are covered by these extra measures, namely those that both used a "test or device" that limited voting (literacy tests, for instance) and had turnout or registration rates of less than fifty percent of the registered voting age population. See id. at 226. Congress also provided for a "bailout" provision in § 4(a), which allowed for a covered jurisdiction with a clean record in recent years to earn an exemption from § 5 from a federal court through a declaratory judgment. See id.

Sections 4 and 5 were originally temporary measures set to expire in 1970. See Northwest, 573 F. Supp. 2d at 226. Congress, however, amended the VRA continuously over the years, renewing and expanding the scope of these two provisions to cover more jurisdictions. See id. at 226-29. A significant change came in 1982 when Congress increased the scope of jurisdictions eligible for § 4(a) bailout. See id. at 227. Now, political subdivisions within covered states can apply for exemptions, which they could not do before. See id.

Shortly after congress extended the VRA in 2006, Northwest Austin Municipal Utility District Number One ("District") filed an action in the U.S. District Court for the District of Columbia. See Northwest, 573 F. Supp. 2d at 229. It set forth two claims in its complaint. First, the District sought a declaratory judgment for an exemption from § 5's preclearance requirement under § 4(a) of the VRA. See id. at 230. Second, it argued that § 5 was an unconstitutional exercise of Congressional power. See id. The three-judge panel held that the District was not entitled to a preclearance exemption because it did not qualify as a "political subdivision" within the meaning of the VRA. See id. at 283. It then went on to uphold the constitutionality of § 5. See id. at 232. In doing so, the Court determined that the appropriate standard of review was the rationality standard set out in the Supreme Court decision of South Carolina v. Katzenbach, which held that Congress "may use any rational means to effectuate the constitutional prohibition of racial discrimination." See 383 U.S. 301, 324. See also Northwest, 573 F. Supp. 2d at 237, 246. Using this deferential test, the Court here found that § 5 was a rational exercise of Congressional authority, thus striking down the District's facial challenge. See Northwest, 573 F. Supp. 2d at 268.



Northwest Austin Municipal Utility District Number One ("District") was created in the late 1980s as a governmental entity within both Austin and Travis County, but independent of both. See Northwest, 573 F. Supp. 2d at 230. Although the entire state of Texas is covered under the Voting Rights Act ("VRA"), the District wants to exempt itself from the VRA's provisions. What the Supreme Court decides could ultimately answer whether we, as a country, still need the VRA's corrective measures.

The District argues that the need for much of the VRA has passed. It starts its brief by pointing to the recent election of Barack Obama as the first African-American president as a prime example of how far the country has come. See Brief for Appellant at 1. The District then argues that the VRA has not kept up with recent social changes and that Congress is using outdated data to intrude on state and local governments "when every indication demonstrates that the original emergency has now passed." See id. at 2.

Other jurisdictions trying to release themselves from § 5's restrictions include states like Alabama, which was one of the original covered jurisdictions under the 1965 VRA. Alabama's governor, Bob Riley, contends that in the thirty-four years the state has been covered by the VRA, Alabama has vastly improved its voting system, surpassing the national average in minority registration and voting for the past sixteen years. See Brief of the Honorable Bob Riley, Governor of The State of Alabama in Support of Neither Party at 2. The Governor points out that when Congress extended § 5 for twenty-five more years in 2006, African-Americans made up 25% of the state legislature, reflecting the similar percentage of the African-American population in Alabama. See id. at 10. Moreover, the Governor argues, the U.S. Department of Justice, in the ten years preceding the 2006 Amendments, has objected only twice out of the 3,279 times any political subdivision in Alabama tried to preclear any voting system changes under section 5. See id. at 11. He claims that Congress, in extending the VRA, did not have evidence that Alabama would engage in discriminatory voting practices without § 5's preclearance requirement. See id. at 14. The result, he concludes, forces the state to go through burdensome, time-consuming procedures to preclear any voting-related changes, which impedes the efficient passage of beneficial or urgent laws. See id. at 17. Georgia's governor makes similar arguments, pointing to data showing increased participation in the government and voting system by the African American population. See Brief of Georgia Governor Sonny Perdue in Support of Petitioner at 11-17.

The federal government and amici are just as vocal about upholding the constitutionality of § 5. Many minority rights groups have come forward arguing that § 5 is necessary in light of the discrimination still faced by minorities in political participation. For instance, the Leadership Conference on Civil Rights ("LCCR") contends that the federal government needs to continuously provide opportunities for political participation among minority citizens in order to protect their voting rights. See Brief of The Leadership Conference on Civil Rights and the LCCR Education Fund et al. in Support of Appellees at 9. Several caucuses from the House of Representatives agree with this position, arguing that the gains minorities have achieved over the years are because of measures such as § 5 of the VRA. See Brief of Barbara Lee, Member of Congress and Chair of the Congressional Black Caucus et al. in Support of Appellees at 5. Both groups of amici fear that in the absence of § 5, progress that was made in minority voting rights and political participation would backslide, especially in light of the continued political discrimination Congress found before it decided to extend § 5's provisions again in 2006. See Brief of LCCR at 16. See also Brief of Barbara Lee at 9-10.

Several other minority interest groups argue for the ongoing necessity of § 5. For instance, the Asian American Legal Defense and Education Fund and other Asian American rights organizations argue that § 203 of the VRA, which provides for language assistance at polls, combined with the preclearance requirement of § 5, form a powerful tool to ensure that Asian Americans can exercise their right to vote in covered jurisdictions. See Brief of Asian American Legal Defense and Education Fund in Support of Appellees at 6-7. The Asian rights organizations argue that if these jurisdictions are not required to preclear any changes to the language assistance provision, many will attempt to get rid of these programs to dissuade minorities with limited English proficiency from voting. See id. at 8-9. Voters from Alaskan native tribes with limited English skills also argue that § 5 is still necessary to address ongoing discriminatory practices in Alaska's voting system. See Brief of Alaska Native Voters in Support of Appellee at 2. The Navajo Nation makes similar arguments about the ongoing necessity of § 5. See Brief of Navajo Nation in Support of Appellee.

In addition to various minority groups assertions, Professors Persily, Ansolabehere, and Stewart show that the despite Barack Obama's victory in the 2008 presidential elections, geographic and racial differences in voting behavior have persisted in covered jurisdictions. See Brief of Nathaniel Persily, Stephen Ansolabehere, and Charles Stewart III in Support of Neither Party at 5. According to their analysis of 2008 exit polls, Obama received 11 percent more of the African-American respondents in covered jurisdictions than John Kerry did in 2004, but hardly gained more votes among the white respondents. See id. at 7. Ultimately, the professors contend that while the 2008 presidential election is indeed a testament to how far political participation has come since the VRA was first passed in 1965, the widening gap between the racial groups suggests that race is still a huge factor in political participation. See id. at 20.



Appellant Northwest Austin Municipal Utility District Number One ("District") contends that the federal preclearance requirements of §5 of the Fannie Lou Harmer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 ("VRA," codified as 42 U.S.C. §§ 1973 et. seq.) are facially unconstitutional and an affront to federalism. See Brief for Appellant at 2. The government, along with a number of Intervenor-Appellees, disagrees, characterizing §5 as an example of Congress acting at the zenith of its constitutional power. See Brief of Federal Appellee at 8; Brief of Intervenor-Appellees Texas State Conference of NAACP branches, et al. ("Brief for NAACP") at 14.

Interpretation of the Bailout Provision

Section 4(a) of the VRA allows any state or separately defined "political subdivision" subject to the federal preclearance requirements of § 5 to "bail-out" of federal supervision providing a number of independent criteria are met. See 42 U.S.C. § 1973b. The District argues that they are a "political subdivision" within the meaning of Section 4 eligible to bail out of federal preclearance. See Brief for Appellant at 14. The District asserts that the bailout provision is required to limit the reach of §5 to only the most severe "problem areas." See id. This proposition is evidenced by the fact that in 1982 Congress specifically expanded the bailout provision to include not just states, but "political subdivisions" as well. See id. at 15. The District urges the Court to follow United States v. Board of Commissioners of Sheffield, 435 U.S. 110 (1978), which held that any political entity that regulates voting could be subject to the enforcement provisions of §5. See id. at 17-18.

The Government counters that the District misreads Sheffield and that the bailout provision cannot apply to the District. See Brief for Federal Appellee at 12-13. The Government contends that the approach offered by the District is contrary to basic rules of statutory interpretation, and urges the Court to follow the reasoning of City of Rome v. United States, 446 U.S. 156 (1980), which held that a municipality could not avail itself of a bailout independently of the state in which it sits. See id. Furthermore, the Government argues that because the Fifteenth Amendment applies specifically to the states, there is no constitutional requirement to extend a bailout to local governments. See id. at 14.

The District argues the bailout provision is required here as a matter of public policy and practical necessity, because its counterintuitive to allow the District to be subject to the enforcement requirements of the VRA without being able to avail itself of the bailout provision. See Brief of Appellant at 20. Furthermore, the District contends that not extending the bailout here would make it almost impossible for counties to be eligible for the bailout, because counties cannot directly control the election procedures of local governments See id. at 25. The District notes that the only bailouts that have ever occurred have been in Virginia, which does not have entities smaller than counties. See id. Ultimately, the District contends that not applying the bailout provision in this case would result in an impermissible interference with state law, because county governments may be put in a position where they are supervising jurisdictions they do not have the power to control. See id. at 25.

Travis County, Texas, where the District is located, joined this appeal as an opposing party, and roundly refutes the District's assertions on these points. See Brief for Appellee Travis County ("County") at 9. At the outset, the County notes that it retains contractual control over voter registration and election administration for over 100 political subdivisions. See id. at 5. The County argues that the District's role in election process is so "uncommonly modest and narrow," that it is not in a position to comprehend the importance of the VRA or the role of § 5 in regulating elections. Id. at 8-10. Furthermore, the County argues that the balance between federalism concerns and protecting the right to vote is better served by the forward-looking approach of § 5 than the alternative urged by the District: litigating each instance of voter discrimination on a case-by-case basis, as provided for in § 2. See id. at 11. Finally, the County argues that compliance with § 5 is relatively inexpensive, quick and easy, and the costs of the alternative could be much greater. See id. at 14. Echoing this sentiment, the Government argues that compliance with § 5 is not unduly burdensome. See Brief for Federal Appellee at 54.

Intervenor-Appellees NAACP echo to the reasoning of the Government and County on the interpretation of the bailout provision. See Brief for NAACP at 16. The Louis Intervenors, representing the Mexican American Legal Defense and Education Fund and People for the American Way, focus their brief entirely on the constitutionality of § 5 under the Boerne congruence-and-proportionality framework. See Brief of Intervenor-Appellees Rodney and Nicole Louis, et. al. ("Brief for Louis") at 2, n. 1.

The Constitutionality of Section Five

The District also challenges the facial constitutionality of the 2006 reauthorization of the VRA. See Brief for Appellant at 27. At the outset, the District argues that the district court wrongly concluded that legislation based on the Fifteenth Amendment was subject constitutional standard more deferential to legislative determinations. See id. The District urges the Court to hold that whenever Congress enacts prophylactic legislation, it should be clearly related to a substantively guaranteed right. See id. at 30. The District derives this proposed standard from the congruence and proportionality test announced in City of Boerne v. Flores, 521 U.S. 507 (1997). See id. at 35. The District argues that § 5 fails this test, because its prescreening requirements apply to any and all voting regulations regardless of their effect on voter discrimination. See id. at 35.

The government responds that the Court has repeatedly upheld the constitutionality of § 5 despite a number of similar challenges in the past. See Brief for Federal Appellee at 15. The NAACP echoes that stare decisis weighs heavily in favor of deferential review. See Brief for NAACP at 22. Furthermore, the Government argues that Boerne is particularly instructive in this case precisely because § 5 was singled out in that opinion as being an example of "appropriate legislation," not subject to a heightened standard of review. See Brief for Federal Appellee at 15. According to the government, the Court has repeatedly upheld deferential review when Congress has acted to protect a right that has been identified by the courts. See id. at 21. The government distinguishes Boerne as being about a general right created by the Fourteenth Amendment, as opposed to a specific right created by the Fifteenth Amendment. See id. at 22.

Though the government rigorously adheres to its position that no heightened standard of review is necessary, it contends that even if Boerne's congruence and proportionality test applies, § 5 survives review. See Brief for Federal Appellee at 30. The right at issue is specific and explicitly announced in the Constitution: the right to vote regardless of race. The prophylactic remedy of § 5 is aimed squarely at protecting that right, and based on extensive historical findings. See id. The crux of the dispute between the parties is the proper characterization of the evidence justifying § 5, namely the congressional record. Compare id. at 42; and Brief for Appellants at 42.

Characterizing § 5 as largely based on forty-year-old data, the District argues that Congress failed to demonstrate a sufficient history and pattern of discrimination to justify reauthorizing the VRA in 2006. See Brief for Appellant at 42. The government, however, counters that nothing in the Constitution requires Congress to reexamine affected jurisdictions for fresh evidence of racial voter discrimination. See Brief for Federal Appellee at 36. The government, County, NAACP and Louis Intervenors all argue that § 5 addresses the same systematic racial inequities today that it was designed to address in 1965, and it is well within Congress's constitutional power to create prophylactic legislation designed to protect an explicitly enumerated right. See id. at 43; Brief for Travis County at 16; Brief for NAACP at 29; Brief for Louis at 7.

Finally, the parties dispute the constitutionality of the duration and scope of § 5. The District argues § 5 must be unconstitutional because is no longer geographically tailored to reach only those areas with a record of discrimination. See Brief of Appellant at 57. Furthermore, the statute lacks a time limit, and is unlimited in its scope. See id. at 61-62. The government, pointing to the bailout provision itself, dismisses of these arguments. See Brief for Federal Appellee at 40. The bailout provision allows a jurisdiction to opt-out of federal supervision by meeting a series of requirements for ten years. See id. The areas targeted by § 5 are areas with a recognized history of race-based voter discrimination, and persistent problems. See id. And, while the statute is not set to expire until 2031, Congress is free to modify or repeal it at any time. See id.



This case presents the court with the opportunity to rule on whether or not the federal government is still constitutionally authorized to regulate voting rules in states that have a history of racially-based voter discrimination. In doing so, the court has an opportunity to clarify the appropriate standard of review for legislation enacted on fifteenth amendment grounds. Ultimately, this case will force the court to examine two core values of our democracy: the right to vote, and the principles of federalism.


Prepared by: Sun Kim and Tom Kurland

Edited by: Joe Hashmall

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