In its recent decision in Northwest Austin Municipal Utility District Number One v. Holder, the Supreme Court addressed questions about the constitutionality and appropriate application of Section 5 of the Voting Rights Act of 1965 (“Act”),1 which requires certain jurisdictions covered by Section 5 of the Act to obtain federal preclearance before making any changes to their election procedures. In an 8-1 decision, the Court raised grave concerns about the constitutionality of Section 5 en route to concluding that many political subdivisions in jurisdictions covered by Section 5 are entitled to pursue the opportunity to bailout of federal oversight of electoral changes under that section. The decision’s immediate impact will be to vastly increase the number of jurisdictions entitled to pursue bailout from the restrictions of Section 5.
Summary of the Case
The appellant, Northwest Austin Municipal Utility District Number One (“Northwest Austin” or “Appellant”), was a small utility district with an elected board. Because it is located in Texas, Northwest Austin was required by Section 5 of the Act to seek federal preclearance before changing any voting procedure, even though there was no evidence that Northwest Austin ever discriminated on the basis of race in prior elections. Northwest Austin filed suit seeking relief under the “bailout” provision in Section 4(a) of the Act, which allows a “political subdivision” to be released from the preclearance requirements if certain conditions are met. The district court, relying on existing precedent, ruled that Northwest Austin was ineligible to bailout of Section 5’s coverage because it was not the type of “political subdivision” to which Section 4(a) applied. Northwest Austin argued in the alternative that, if Section 5 were interpreted to render it ineligible for bailout, Section 5 was unconstitutional. The district court rejected this claim as well. It concluded that bailout under §4(a) is available only to counties, parishes and subunits that register voters, not to an entity like the Northwest Austin utility district that does not register its own voters. The district court also concluded that a 2006 amendment extending Section 5 of the Act for 25 years was constitutional.
Summary of the Decision
Chief Justice Roberts delivered the 8-1 opinion of the Court, while Justice Thomas filed a separate opinion concurring in the judgment in part and dissenting in part. The Court noted that, despite the historic accomplishments of the Act, the preclearance requirement of Section 5 of the Act raises serious constitutional concerns in light of the fact that the preclearance requirement represents an intrusion into areas of state and local responsibility that is otherwise unfamiliar to the federal system. Because the Court normally will not decide a constitutional question if there is some other ground upon which to dispose of the case, however, the Court ruled in favor of Appellant on narrower grounds.
Specifically, the Court considered the proper interpretation of Section 4(a) of the Act, which allows a court to issue a declaratory judgment allowing a State or “political subdivision” to bailout of Section 5 preclearance requirements upon a showing that
- no test or device has been used within such state or political subdivision for the purpose or with the effect of denying or abridging the right to vote on account of race or color;
- no final judgment of any court of the United States has determined that denials or abridgements of the right to vote on account of race or color have occurred anywhere in the territory of such state or political subdivision;
- no federal examiners have been assigned under the Act to such state or political subdivision;
- such state or political subdivision and all governmental units within its territory have complied with section 1973c of the Act, including compliance with the requirement that no change covered by section 1973c of the Act has been enforced without preclearance, and have repealed all changes covered by section 1973c of the Act to which the attorney general has successfully objected or as to which a court has denied a declaratory judgment;
- The attorney general has not interposed any objection and no declaratory judgment has been denied under section 1973c of the Act, with respect to any submission by or on behalf of the plaintiff or any governmental unit within its territory under section 1973c of the Act, and no such submissions or declaratory judgment actions are pending; and
- such state or political subdivision and all governmental units within its territory
have eliminated voting procedures and methods of election that inhibit or dilute equal access to the electoral process;
have engaged in constructive efforts to eliminate intimidation and harassment of persons exercising rights protected under the Act; and
- have engaged in other constructive efforts, such as expanded opportunity for convenient registration and voting for every person of voting age and the appointment of minority persons as election officials throughout the jurisdiction, and at all stages of the election and registration process.
Though the government pushed for a narrow interpretation of the term “political subdivision” as including only a county, a parish or another subdivision which conducts voter registration, the Court held that “political subdivision,” as used in Section 4(a) of the Act, refers to “political subdivision” in the ordinary sense of the term, including political subsets of larger, covered political divisions. As such, the Court found in favor of the Appellant, holding that Northwest Austin was a political subdivision that was entitled to exercise the bailout provisions of the Act. The Court thus reversed and remanded.
While the Court did not go so far as to strike down Section 5 of the Act as unconstitutional, the Court did significantly increase the number of jurisdictions that are entitled to avail themselves of Section 4(a)’s bailout provisions. Specifically, smaller jurisdictions such as electrical and water districts within covered jurisdictions are now, for the first time, entitled to pursue Section 4(a)’s bailout provisions irrespective of whether a covered county or covered state as a whole chooses to pursue the bailout option.