NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT NUMBER ONE v. HOLDER, ATTORNEY GENERAL, ET AL.
No. 08-322
SUPREME COURT OF THE UNITED STATES
Argued April 29, 2009—Decided June 22, 2009
557 U.S. 193
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ROBERTS, C. J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 212.
Gregory S. Coleman argued the cause for appellant. With him on the briefs was Christian J. Ward.
Deputy Solicitor General Katyal argued the cause for the federal appellee. With him on the brief were then-Acting Solicitor General Kneedler, Acting Assistant Attorney General King, Douglas Hallward-Driemeier, Steven H. Rosenbaum, Diana K. Flynn, Sarah E. Harrington, and T. Christian Herren, Jr.
Debo P. Adegbile argued the cause for the intervenor-appellees. With him on the brief for intervenor-appellee Rodney Louis et al. were John Payton, Jacqueline A. Berrien, Ryan P. Haygood, Kristen M. Clarke, Joshua Civin, Samuel Spital, Kathryn Kolbert, Nina Perales, Jose Garza, George Korbel, and Judith A. Sanders-Castro. Seth P. Waxman, Paul R. Q. Wolfson, Jonathan E. Nuechterlein, Ariel B. Waldman, Rebecca G. Deutsch, Micah S. Myers, Jon M. Greenbaum, Mark A. Posner, Laughlin McDonald, Steven R. Shapiro, Michael Kator, Jeremy Wright, Arthur B. Spitzer, and Angela Ciccolo filed a brief for intervenor-appellee Texas State Conference of NAACP Branches et al. Renea Hicks filed a brief for appellee Travis County.*
*Briefs of amici curiae urging reversal were filed for the Mountain States Legal Foundation by J. Sсott Detamore; for the Southeastern Legal Foundation by Shannon Lee Goessling and Bert W. Rein; for Georgia Governor Sonny Perdue by Anne W. Lewis, Special Attorney General of Georgia; and for Dr. Abigail Thernstrom et al. by Michael A. Carvin.
Briefs of amici curiae urging affirmance were filed for the State of North Carolina et al. by Roy Cooper, Attorney General of North Carolina, Christopher G. Browning, Jr., Tiare B. Smiley, Alexander McC. Peters, and Susan K. Nichols, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Edmund G. Brown, Jr., of California, James D. Caldwell of Louisiana, Jim Hood of Mississippi, and Andrew Cuomo of New York; for Alaska Native Voters et al. by James Thomas Tucker; for the American Bar Association by H. Thomas Wells, Jr., and Christopher T. Handman; for the Asian American Legal Defense and Education Fund et al. by Theodore K. Cheng; for the Brennan Center for Justice at New York University School of Law by Paul M. Smith, Marc A. Goldman, Wendy Weiser, and Sidney S. Rosdeitcher; for the Civil Rights Clinic at Howard University School of Law by Aderson Bellegarde François; for the Constitutional Accountability Center by Clifford M. Sloan, Douglas T. Kendall, and Elizabeth B. Wydra; for Former Republican Officeholders by Trevor Potter, Tara Malloy, and Paul S. Ryan; for Jurisdictions That Have Bailed Out Under the Voting Rights Act by J. Gerald Hebert and Gеorge Warren Shanks; for the Leadership Conference on Civil Rights et al. by Matthew M. Hoffman, Stephen J. Pollak, John Townsend Rich, and William L. Taylor; for Members of the Texas House of Representatives by Lynn E. Blais, Michael F. Sturley, and David C. Frederick; for the Navajo Nation et al. by Marvin S. Cohen and Louis Denetsosie; for Julius Chambers et al. by William D. Kissinger; for Congressman John Conyers, Jr., et al. by Pamela S. Karlan, Jeffrey L. Fisher, Amy Howe, Kevin K. Russell, and Thomas C. Goldstein; for Nicholas deB. Katzenbach et al. by Samuel R. Bagenstos; for Congresswoman Barbara Lee et al. by Juan Cartagena; and for Congressman John Lewis by Mr. François.
Briefs of amici curiae were filed for the Asian American Justice Center et al. by Allegra R. Rich, David M. Burns, Thron K. Murakami, Karen K. Narasaki, and Vincent A. Eng; for the Pacific Legal Foundation et al. by Sharon L. Browne; for the Scharf-Norton Center for Constitutional Litigation, Goldwater Institute, by Clint Bolick and Nicholas C. Dranias; for Nathaniel Persily et al. by Mr. Persily, pro se; and for Bob Riley, Governor of Alabama, by Corey L. Maze, Solicitor General of Alabama, and Misty S. Fairbanks, Assistant Attorney General.
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
The plaintiff in
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
I
A
The Fifteenth Amendment promises that the “right of citizens of the United States to vote shall not be denied or abridged . . . on aсcount of race, color, or previous condition of servitude.”
Congress responded with the Voting Rights Act.
The remainder of the Act constitutes a “scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant.” Katzenbach, supra, at 315. Rather than continuing to depend on case-by-case litigation, the Act directly pre-empted the most powerful tools of black disenfranchisement in the covered areas. All literacy tests and similar voting qualifications were abolished by
These two remedies were bolstered by
To confine these remedies to areas of flagrant disenfranchisement, the Act applied them only to States that had used a forbidden test or device in November 1964, and had less than 50% voter registration or turnout in the 1964 Presidential election.
To bail out under the current provision, a jurisdiction must seek a declaratory judgment from a three-judge District Court in Washington, D. C.
As enacted, §§ 4 and 5 of the Voting Rights Act were temporary provisions. They were expected to be in effect for only five years.
Congress reauthorized the Act in 1970 (for 5 years), 1975 (for 7 years), and 1982 (for 25 years). The coverage formula remained the same, based on the use of voting-eligibility tests and the rate of registration and turnout among all voters, but the pertinent dates for assessing these criteria moved from 1964 to include 1968 and eventually 1972.
B
Northwest Austin Municipal Utility District Number One was created in 1987 to deliver city services to residents of a portion of Travis County, Texas. It is governed by a board of five members, elected to staggered terms of four years. The district does not register voters but is responsible for its own elections; for administrative reasons, those elections are run by Travis County. Because the district is located in Texas, it is subject to the obligations of
The district filed suit in the District Court for the District of Columbia, seeking relief under the statute‘s bailout provisions and arguing in the alternative that, if interpreted to render the district ineligible for bailout,
II
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. Katzenbach, supra, at 313; H. R. Rep. No. 109-478, p. 12 (2006). Today, the registration gap between white and black voters is in single digits in the covered States; in some of those States, blacks now register and vote at higher rates than whites. Id., at 12-13. Similar dramatic improvements have occurred for other racial minorities. Id., at 18-20. “[M]any of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [Voting Rights Act] have been eliminated.” Id., at 12; Bartlett v. Strickland, 556 U. S. 1, 10 (2009) (plurality opinion) (“Passage of the Voting Rights Act of 1965 was an important step in the struggle to end discriminatory treatment of minorities who seek to exercise one of the most fundamental rights of our citizens: the right to vote“).
At the same time,
Section 5 goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C. The preclearance requirement appliеs broadly, NAACP v. Hampton County Election Comm‘n, 470 U. S. 166, 175-176 (1985), and in particular to every political subdivision in a covered State, no matter how small, United States v. Sheffield Bd. of Comm‘rs, 435 U. S. 110, 117-118 (1978).
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
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.
These federalism concerns are underscored by the argument that the preclearance requirements in one State would be unconstitutional in another. See Georgia v. Ashcroft, 539 U. S. 461, 491-492 (2003) (KENNEDY, J., concurring) (“Race cannot be the predominant factor in redistricting under our decision in Miller v. Johnson, 515 U. S. 900 (1995). Yet considerations of race that would doom a redistricting plan under the Fourteenth Amendment or
The evil that
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.
In assessing those questions, we are keenly mindful of our institutional role. We fully appreciate that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty that this Court is called on to perform.” gett v. Holden” cite=“275 U.S. 142” pinpoint=“147-148” court=“U.S.” date=“1927“>Blodgett v. Holden, 275 U. S. 142, 147-148 (1927) (Holmes, J., concurring). “The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U. S. 57, 64 (1981). The Fifteenth Amendment empowers “Congress,” not the Court, to determine in the first instance what legislation is needed to enforce it. Congress amassed a sizable record in support of its decision to extend the preclearance requirements, a record the District Court determined “document[ed] contemporary racial discrimination in covered states.” 573 F. Supp. 2d, at 265. The District Court also found that the record “demonstrat[ed] that section 5 prevents discriminatory voting changes” by “quietly but effectively deterring discriminatory changes.” Id., at 264.
We will not shrink from our duty “as thе bulwar[k] of a limited constitution against legislative encroachments,” The Federalist No. 78, p. 526 (J. Cooke ed. 1961) (A. Hamilton), but “[i]t is a well-established principle governing the prudent exercise of this Court‘s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,” Escambia County v. McMillan, 466 U. S. 48, 51 (1984) (per curiam). Here, the district also raises a statutory claim that it is eligible to bail out under §§ 4 and 5.
JUSTICE THOMAS argues that the principle of constitutional avoidance has no pertinence here. He contends that even if we resolve the district‘s statutory argument in its favor, we would still have to reach the constitutional question, because the district‘s statutory argument would not afford it all the relief it seeks. Post, at 212-214 (opinion concurring in judgment in part and dissenting in part).
We disagree. The district expressly describes its constitutional challenge to
III
The Act, however, also provides a narrower statutory definition in
“Statutory definitions control the meaning of statutory words, of course, in the usual case. But this is an unusual case.” Lawson v. Suwannee Fruit & S. S. Co., 336 U. S. 198, 201 (1949); see also Farmers Reservoir & Irrigation Co. v. McComb, 337 U. S. 755, 764 (1949); Philko Aviation, Inc. v. Shacket, 462 U. S. 406, 412 (1983). Were the scope of
Importantly, we do not write on a blank slate. Our decisions have already established that the statutory definition in
We reaffirmed this restricted scope of the statutory definition the next Term in Dougherty County Bd. of Ed. v. White, 439 U. S. 32 (1978). There, a school board argued that because “it d[id] not meet the definition” of political subdivision in
“This contention is squarely foreclosed by our decision last Term in [Sheffield]. There, we expressly rejected the suggestion that the city of Sheffield was beyond the ambit of
§5 because it did not itself register voters and hence was not a political subdivision as the term is defined in§14(c)(2) of the Act. . . . [O]nce a State has been designated for coverage,§ 14(c)(2) ‘s definition of politicalsubdivision has no operative significance in determining the reach of §5 .” Id., at 44 (internal quotation marks omitted).
According to these decisions, then, the statutory definition of “political subdivision” in
The Government responds that any such argument is foreclosed by our interpretation of the statute in City of Rome, 446 U. S. 156. There, it argues, we made clear that the discussion of political subdivisions in Sheffield was dictum, and “specifically held that a ‘city is not a “political subdivision” for purposes of
Even if that is what City of Rome held, the premises of its statutory holding did not survive later changes in the law. In City of Rome we rejected the city‘s attempt to bail out from coverage under
In 1982, however, Congress expressly repudiated City of Rome and instead embraced “piecemeal” bailout. As part of an overhaul of the bailout provision, Congress amended the Voting Rights Act to expressly provide that bailout was also available to “political subdivisions” in a covered State, “though [coverage] determinations were not made with respect to such subdivision as a separate unit.” Voting Rights Act Amendments of 1982, §2(b), 96 Stat. 131, codified at
Bailout and preclearance under
The Government contends that this reading of Sheffield is mistaken, and that the district is subject to
The assertion that the district is a State is at least counterintuitive. We acknowledge, however, that there has been much confusion over why Sheffield held the city in that case to be covered by the text of
But after the 1982 amendments, the Government‘s position is untenable. If the district is considered the State, and therefore necessarily subject to preclearance so long as Texas is covered, then the same must be true of all other subdivisions of the State, including counties. That would render even counties unable to seek bailout so long as their State was covered. But that is the very restriction the 1982 amendments overturned. Nobody denies that counties in a covered State can seek bailout, as several of them havе. See Voting Rights Act: Section 5 of the Act—History, Scope, and Purpose: Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., 2599-2834 (2005) (detailing bailouts). Because such piecemeal bailout is now permitted, it cannot be true that
The Government‘s contrary interpretation has helped to render the bailout provision all but a nullity. Since 1982, only 17 jurisdictions—out of the more than 12,000 covered political subdivisions—have successfully bailed out of the Act. App. to Brief for Jurisdictions That Have Bailed Out as Amici Curiae 3; Dept. of Commerce, Bureau of Census, 2002 Census of Governments, Vol. 1, No. 1, pp. 1, 22-60. It is unlikely that Congress intended the provision to have such limited effect. See United States v. Hayes, 555 U. S. 415, 426-427 (2009).
We therefore hold that all political subdivisions—not only those described in
*
*
*
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, inсluding
The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE THOMAS, concurring in the judgment in part and dissenting in part.
This appeal presents two questions: first, whether appellant is entitled to bail out from coverage under the Voting Rights Act of 1965 (VRA); and second, whether the preclearance requirement of
I
The doctrine of constitutional avoidance factors heavily in the Court‘s conclusion that appellant is eligible for bailout as a “political subdivision” under
Eligibility for bailout turns on the statutory question addressed by the Court—the proper definition of “political subdivision” in the bailout clauses of
it is not engaging in “discrimination in voting on account of race,” see
But because the Court is not in a position to award appellant bailout, adjudication of the constitutionality of § 5, in my view, cannot be avoided. “Traditionally, the avoidance canon was not a doctrine under which courts read statutes to avoid mere constitutional doubts. Instead, it commanded courts, when faced with two plausible constructions of a statute—one constitutional and the other unconstitutional—to choose the constitutional reading.” Clark v. Martinez, 543 U. S. 371, 395 (2005) (THOMAS, J., dissenting). To the extent that
The doctrine of constitutional avoidance is also unavailable here because an interpretation of
These extensive requirements may be difficult to satisfy, see Brief for Georgia Governor Sonny Perdue as Amicus Curiae 20–26, but at least they are objective. The covered jurisdiction seeking bailout must also meet subjective criteria: It must “(i) have eliminated voting procedures and methods of election which inhibit or dilute equal access to the electoral process; (ii) have engaged in constructive efforts to eliminate intimidation and harassment of persons exercising rights protected [under the Act]; and (iii) 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.”
As a result, a covered jurisdiction meeting each of the objective conditions could
II
The Court quite properly alerts Congress that § 5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional. See ante, at 202–204. And, although I respect the Court‘s careful approach to this weighty issue, I nevertheless believe it is necessary to definitively resolve that important question. For the reasons set forth below, I conclude that the lack of current evidence of intentional discrimination with respect to voting renders § 5 unconstitutional. The provision can no longer be justified as an appropriate mechanism for enforcement of the Fifteenth Amendment.
A
“The government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people.” United States v. Cruikshank, 92 U. S. 542, 551 (1876); see also U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 848 (1995) (THOMAS, J., dissenting). In the specific area of voting rights, this Court has consistently recognized that the Constitution gives the States primary authority over the structuring of electoral systems. See, e. g., White v. Weiser, 412 U. S. 783, 795 (1973); Burns v. Richardson, 384 U. S. 73, 84–85 (1966). “No function is more essential to the separate and independent existence of the States and their governments than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nаture of their own machinery for filling local public offices.” Oregon v. Mitchell, 400 U. S. 112, 125 (1970) (opinion of Black, J.).
State autonomy with respect to the machinery of self-government defines the States as sovereign entities rather than mere provincial outposts subject to every dictate of a central governing authority. See
To be sure, state authority over local elections is not absolute under the Constitution. The Fifteenth Amendment guarantees that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” § 1, and it grants Congress the authority to “enforce” these rights “by appropriate legislation,” § 2. The Fifteenth Amendment thus renders unconstitutional any federal or state law that would limit a citizen‘s access to the ballot on one of the three bases enumerated in the Amendment. See Mobile v. Bolden, 446 U. S. 55, 65 (1980) (plurality opinion) (the Fiftеenth Amendment guards against “purposefully discriminatory denial or abridgment by government of the freedom to vote“). Nonetheless, because States still retain sovereign authority over their election systems, any measure enacted in furtherance of the Fifteenth Amendment must be closely examined to ensure that its encroachment on state authority in this area is limited to the appropriate enforcement of this ban on discrimination.
There is certainly no question that the VRA initially “was passed pursuant to Congress’ authority under the Fifteenth Amendment.” Lopez v. Monterey County, 525 U. S. 266, 282 (1999). For example, §§ 2 and 4(a) seek to implement the Fifteenth Amendment‘s substantive command by creating a private cause of action to enforce § 1 of the Fifteenth Amendment, see
Section 5, however,
The rebellion against the enfranchisement of blacks in the wake of ratification of the Fifteenth Amendment illustrated the need for increased federal intervention to protect the right to vote. Almost immediately following Reconstruction, blacks attempting to vote were met with coordinated intimidation and violence. See, e. g., L. McDonald, A Voting Rights Odyssey: Black Enfrаnchisement in Georgia 34 (2003) (“By 1872, the legislative and executive branches of state government ... were once again firmly in the control of white Democrats, who resorted to a variety of tactics, including fraud, intimidation, and violence, to take away the vote from blacks, despite ratification of the Fifteenth Amendment in 1870...“).2 A soon-to-be victorious mayoral candidate in Wilmington, North Carolina, for example, urged white voters in an 1898 election-eve speech: “Go to the polls tomorrow and if you find the negro out voting, tell him to leave the polls, and if he refuses kill him; shoot him down in his tracks.‘” S. Tolnay & E. Beck, A Festival of Violence: An Analysis of Southern Lynchings, 1882–1930, p. 67 (1995).
This campaign of violence eventually was supplemented, and in part replaced, by more subtle methods engineered to deny blacks the right to vote. See South Carolina v. Katzenbach, 383 U. S. 301, 310–312 (1966). Literacy tests were particularly effective: “[A]s of 1890 in... States [with literacy tests], more than two-thirds of the adult Negroes were illiterate while less than one-quarter of the adult whites were unable to read or write,” id., at 311, because “[p]rior to the Civil War, most of the slave States made it a crime to teach Negroes how to read or write,” see also ibid., n. 10.3 Compounding the tests’ discriminatory impact on blacks, alternative voter qualification laws such as “grandfather clauses, property qualifications, [and] ‘good character’ tests” were enacted to protect those whites who were unable to pass the literacy tests. Id., at 311; see also Lopez, 525 U. S., at 297 (THOMAS, J., dissenting) (“Literacy tests were unfairly administered; whites were given easy questions, and blacks were given
The Court had declared many of these “tests and devices” unconstitutional, see Katzenbach, 383 U. S., at 311–312, but case-by-case eradication was woefully inadequate to ensure that the franchise extended to all citizens regardless of race, see id., at 328. As a result, enforcement efforts before the enactment of § 5 had rendered the right to vote illusory for blacks in the Jim Crow South. Despite the Civil War‘s bloody purchase of the Fifteenth Amendment, “the reality remained far from the promise.” Rice v. Cayetano, 528 U. S. 495, 512–513 (2000); see also R. Wardlaw, Negro Suffrage in Georgia, 1867–1930, p. 34 (Phelps-Stokes Fellowship Studies, No. 11, Sept. 1932) (“Southern States were setting out to accomplish an effectual nullification of the war measures of Congress“).
Thus, by 1965, Congress had every rеason to conclude that States with a history of disenfranchising voters based on race would continue to do all they could to evade the constitutional ban on voting discrimination. By that time, race-based voting discrimination had “infected the electoral process in parts of our country for nearly a century.” Katzenbach, 383 U. S., at 308. Moreover, the massive scale of disenfranchisement efforts made case-by-case enforcement of the Fifteenth Amendment impossible, if not Sisyphean. See id., at 309 (“Congress concluded that the unsuccessful remedies which it had prescribed in the past would have to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment“); Rice, supra, at 513 (“Progress was slow, particularly when litigation had to proceed case by case, district by district, sometimes voter by voter“); Thernstrom, Section 5 of the Voting Rights Act: By Now, a Murky Mess, 5 Geo. J. L. & Pub. Pol‘y 41, 44 (2007) (“In 1965, it was perfectly reasonable to believe that any move affecting black enfranchisement in the Deep South was deeply suspect. And only such a punitive measure [as § 5] had any hope of forcing the South to let blacks vote” (emphasis in original)).
It was against this backdrop of “historical experiencе” that § 5 was first enacted and upheld against a constitutional challenge. See Katzenbach, supra, at 308. As the Katzenbach Court explained, § 5, which applied to those States and political subdivisions that had employed discriminatory tests and devices in the previous Presidential election, see
In upholding § 5 in Katzenbach, the Court nonetheless noted that the provision was an “uncommon exercise of congressional power” that would not have been “appropriate” absent the “exceptional conditions” and “unique circumstances” present in the targeted jurisdictions at that particular time. Id., at 334–335. In reaching its decision, the Court thus refused to simply accept Congress’ representation that the extreme measure was necessary to enforce the Fifteenth Amendment; rather, it closely reviewed the record compiled by Congress to ensure that § 5 was “appropriate” antievasion legislation. See id., at 308. In so doing, the Court highlighted evidence showing that black voter registration rates ran approximately 50 percentage points lower than white voter registration in several States. See id., at 313. It also noted that the registration rate for blacks in Alabama “rose only from 14.2% to 19.4% between 1958 and 1964; in Louisiana it barely inched ahead from 31.7% to 31.8% between 1956 and 1965; and in Mississippi it increased only from 4.4% to 6.4% between 1954 and 1964.” Ibid. The Court further observed that voter turnout levels in covered jurisdictions had been at least 12% below the national average in the 1964 Presidential election. See id., at 329–330.
The statistical evidence confirmed Congress’ judgment that “the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the facе of adverse federal court decrees” was working and could not be defeated through case-by-case enforcement of the Fifteenth Amendment. Id., at 335. This record also clearly supported Congress’ predictive judgment that such “States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself.” Ibid. These stark statistics—in conjunction with the unrelenting use of discriminatory tests and practices that denied blacks the right to vote—constituted sufficient proof of “actual voting discrimination” to uphold the preclearance requirement imposed by § 5 on the covered jurisdictions as an appropriate exercise of congressional power under the Fifteenth Amendment. Id., at 330. It was only “[u]nder the compulsion of these unique circumstances [that] Congress responded in a permissibly decisive manner.” Id., at 335.
B
Several important principles emerge from Katzenbach and the decisions that followed it. First, § 5 prohibits more state voting practices than those necessarily encompassed by the explicit prohibition on intentional discrimination found in the text of the Fifteenth Amendment. The explicit command of the Fifteenth Amendment is a prohibition on state practices that in fact deny individuals the right to vote “on account of” racе, color, or previous servitude. In contrast, § 5 is the quintessential prophylaxis; it “goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C.” Ante, at 202. The Court has freely acknowledged that such legislation is preventative, upholding it based on the view that the Reconstruction Amendments give Congress the power “both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment‘s text.” Kimel v. Florida Bd. of Regents, 528 U. S. 62, 81 (2000) (emphasis added).
Second, because it sweeps more broadly than the substantive command of the Fifteenth Amendment, § 5 pushes the outer boundaries of Congress’ Fifteenth Amendment enforcement authority. See Miller v. Johnson, 515 U. S. 900, 926 (1995) (detailing the “federalism costs exacted by § 5“); Presley v. Etowah County Comm‘n, 502 U. S. 491, 500–501 (1992) (describing § 5 as “an extraordinary departure from the traditional course of relations between the States and the Federal Government“); City of Rome v. United States, 446 U. S. 156, 200 (1980) (Powell, J., dissenting) (“The preclearance requirement both intrudes on the prerogatives of state and local governments and abridges the voting rights of all citizens in States covered under the Act“); Lopez, 525 U. S., at 293 (THOMAS, J., dissenting) (“Section 5 is a unique requirement that exacts significant federalism costs“); ante, at 202 (“[Section] 5, which аuthorizes federal intrusion into sensitive areas of state and local policymaking, imposes substantial federalism costs” (internal quotation marks omitted)). Indeed, § 5‘s preclearance requirement is “one of the most extraordinary remedial provisions in an Act noted for its broad remedies. Even the Department of Justice has described it as a ‘substantial departure... from ordinary concepts of our federal system‘; its encroachment on state sovereignty is significant and undeniable.” United States v. Sheffield Bd. of Comm‘rs, 435 U. S. 110, 141 (1978) (STEVENS, J., dissenting) (footnote omitted). This “encroachment is especially troubling because it destroys local control of the means of self-government, one of the central values of our polity.” City of Rome, supra, at 201 (Powell, J., dissenting). More than 40 years after its enactment, this intrusion has become increasingly difficult to justify.
Third, to accommodate the tension between the constitutional imperatives of the Fifteenth and Tenth Amendments—a balance between allowing the Federal Government to patrol state voting practices for discrimination and preserving the States’ significant interest in self-determination—the constitutionality of § 5 has always depended on the proven existence of intentional discrimination so extensive that elimination of it through case-by-case enforcement would be impossible. See Katzenbach, 383 U. S., at 308 (“Before enacting the measure, Congress explored with great care the problem of racial discrimination in voting“); Katzenbach v. Morgan, 384 U. S. 641, 667 (1966) (Harlan, J., dissenting) (“Congress made a detailed investigation of various state practices that had been used to deprive Negroes of the franchise“). “There can be no remedy without a wrong. Essential to our holdings in [South Carolina v.] Katzenbach and City of Rome was our conclusion that Congress was remedying the effects of prior intentional racial discrimination. In both cases, we required Congress to have some evidence that the jurisdiction burdened with preclearance obligations had actually engaged in such intentional discrimination.” Lopez, supra, at 294–295 (THOMAS, J., dissenting) (emphasis in original).
The Court has never deviated from this understanding. We have explained that prophylactic legislation designed to enforce the Reconstruction Amendments must “identify conduct transgressing the substantive provisions” it seeks to enforce and be tailored “to remedying or preventing
“Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one.” Ibid.
C
The extensive pattern of discrimination that led the Court to previously uphold § 5 as enforcing the Fifteenth Amendment no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of “grandfather clauses, property qualifications, ‘good character’ tests, and the requirement that registrants ‘understand’ or ‘interpret’ certain matter,” Katzenbach, 383 U. S., at 311, are gone. There is thus currently no concerted effort in these jurisdictions to engage in the “unremitting and ingenious defiance of the Constitution,” id., at 309, that served as the constitutional basis for upholding the “uncommon exercise of congressional power” embodied in § 5, id., at 334.
The lack of sufficient evidence that the covered jurisdictions currently engage in the type of discrimination that underlay the enactment of § 5 undermines any basis for retaining it. Punishment for long past sins is not a legitimate basis for imposing a forward-looking preventative measure that has already served its purpose. Those supporting § 5‘s reenactment argue that without it these jurisdictions would return to the racially discriminatory practices of 30 and 40 years ago. But there is no evidence that public officials stand ready, if given the chance, to again engage in concerted acts of violence, terror, and subterfuge in order to keep minorities from voting. Without such evidence, the charge can only be premised on outdated assumptions about racial attitudes in the covered jurisdictions. Admitting that a prophylactic law as broad as § 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgment of victory.
The current statistical evidence confirms that the emergency that prompted the enactment of § 5 has long since passed. By 2006, the voter registration rates for blacks in Alabama, Louisiana, and Mississippi had jumped to 71.8%, 66.9%, and 72.2%, respectively. See App. to Brief for Southeastern Legal Foundation as Amicus Curiae 6a–7a (hereinafter SLF Brief). Therefore, in contrast to the Katzenbach Court‘s finding that the “registration of voting-age whites ran roughly 50 percentage points or more ahead of Negro registration” in these States in 1964, see 383 U. S., at 313, since that time this disparity has nearly vanished. In 2006, the disparity was only 3 percentage points in Alabama, 8 percentage points in Louisiana, and in Mississippi, black voter registration actually exceeded white voter registration by 1.5 percentage points. See App. to SLF Brief 6a–7a. In addition, blacks in these three covered States also have higher registration numbers
Indeed, when reenacting § 5 in 2006, Congress evidently understood that the emergency conditions which prompted § 5‘s original enactment no longer exist. See H. R. Rep. No. 109-478, p. 12 (2006) (“The record reveals that many of the first generation barriers to minority votеr registration and voter turnout that were in place prior to the VRA have been eliminated“). Instead of relying on the kind of evidence that the Katzenbach Court had found so persuasive, Congress based reenactment on evidence of what it termed “second generation barriers constructed to prevent minority voters from fully participating in the electoral process.” § 2(b)(2), 120 Stat. 577. But such evidence is not probative of the type of purposeful discrimination that prompted Congress to enact § 5 in 1965. For example, Congress relied upon evidence of racially polarized voting within the covered jurisdictions. But racially polarized voting is not evidence of unconstitutional discrimination, see Bolden, 446 U. S. 55, is not state action, see James v. Bowman, 190 U. S. 127, 136 (1903), and is not a problem unique to the South, see Katz, Aisenbrey, Baldwin, Cheuse, & Weisbrodt, Documenting Discrimination in Voting: Judicial Findings Under Section 2 of The Voting Rights Act Since 1982, 39 U. Mich. J. L. Reform 643, 665 (2006). The other evidence relied on by Congress, such as § 5 enforcement actions, §§ 2 and 4 lawsuits, and federal examiner and observer coverage, also bears no resemblance to the record initially supporting § 5, and is plainly insufficient to sustain such an extraordinary remedy. See SLF Brief 18–35. In sum, evidence of “second generation barriers” cannot compare to the prevalent and pervasive voting discrimination of the 1960‘s.
This is not to say that voter discrimination is extinct. Indeed, the District Court singled out a handful of examples of allegedly discriminatory voting practices from the record made by Congress. See, e. g., Northwest Austin Municipal Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 252–254, 256–262 (DC 2008). But the existence of discrete and isolated incidents of interference with the right to vote has never been sufficient justification for the imposition of § 5‘s extraordinary requirements. From its inception, the statute was promoted as a measure needed to neutralize a coordinated and unrelenting campaign to deny an entire race access to the ballot. See City of Boerne, 521 U. S., at 526 (concluding that Katzenbach confronted a “widespread and persisting deprivation of constitutional rights resulting from this country‘s history of racial discrimination“). Perfect compliance with the Fifteenth Amendment‘s substantive command is not now—nor has it ever been—the yardstick for determining whether Congress has the power to employ broad prophylactic legislation to enforce that Amendment. The burden remains with Congress to prove that the extreme circumstances warranting § 5‘s enactment persist today. A record of scattered
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In 1870, the Fifteenth Amendmеnt was ratified in order to guarantee that no citizen would be denied the right to vote based on race, color, or previous condition of servitude. Congress passed § 5 of the VRA in 1965 because that promise had remained unfulfilled for far too long. But now—more than 40 years later—the violence, intimidation, and subterfuge that led Congress to pass § 5 and this Court to uphold it no longer remains. An acknowledgment of § 5‘s unconstitutionality represents a fulfillment of the Fifteenth Amendment‘s promise of full enfranchisement and honors the success achieved by the VRA.