1
(Slip Opinion) OCTOBER TERM, 2008
Syllabus
NOTE: Where it is feasible, a syllabus
(headnote) will be released, as isbeing done in
connection with this case, at the time the opinion
is issued.The syllabus constitutes no part of the
opinion of the Court but has beenprepared by the
Reporter of Decisions for the convenience of the
reader. See United States v. Detroit Timber &
Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NORTHWEST AUSTIN MUNICIPAL UTILITY
DISTRICT NUMBER ONE v. HOLDER,
ATTORNEY GENERAL, ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
No. 08–322. Argued April 29,
2009—Decided June 22, 2009
The appellant is a small utility district with
an elected board. Because it is located in Texas,
it is required by §5 of the Voting Rights Act
of1965 (Act) to seek federal preclearance before it
can change anything about its elections, even
though there is no evidence it has ever
dis-criminated on the basis of race in those
elections. The district filed suit seeking relief
under the “bailout” provision in
§4(a) of the Act, which allows a
“political subdivision” to be released
from the pre-clearance requirements if certain
conditions are met. The district ar-gued in the
alternative that, if §5 were interpreted to
render it ineli-gible for bailout, §5 was
unconstitutional. The Federal District Court
rejected both claims. It concluded that bailout
under §4(a) is avail-able only to counties,
parishes, and subunits that register voters, notto
an entity like the district that does not register
its own voters. It also concluded that a 2006
amendment extending §5 for 25 years
wasconstitutional.
Held:
1. The historic accomplishments of the Voting
Rights Act are unde-niable, but the Act now raises
serious constitutional concerns. The preclearance
requirement represents an intrusion into areas of
stateand local responsibility that is otherwise
unfamiliar to our federal system. Some of the
conditions that the Court relied upon in uphold-ing
this statutory scheme in South Carolina v.
Katzenbach, 383 U. S. 301, and City of Rome v.
United States, 446 U. S. 156, have unques-tionably
improved. Those improvements are no doubt due in
signifi-cant part to the Voting Rights Act itself,
and stand as a monument to
2
NORTHWEST AUSTIN MUNICIPAL UTIL.
DIST.
NO. ONE v. HOLDER
Syllabus
its success, but the Act imposes current burdens
and must be justi-fied by current needs. The Act
also differentiates between the States in ways that
may no longer be justified.
At the same time, the Court recognizes that
judging the constitu-
tionality of an Act of Congress is “the
gravest and most delicate duty
that this Court is called upon to perform.”
Blodgett v. Holden, 275
U. S. 142, 147–148 (Holmes, J.,
concurring). Here the District Court found that the
sizable record compiled by Congress to support
exten-sion of §5 documented continuing racial
discrimination and that §5 deterred
discriminatory changes.
The Court will not shrink from its duty “as
the bulwark of a limitedConstitution against
legislative encroachments,” The Federalist
No.78, but “[i]t is . . . well
established. . . 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. Here, the district also raises a
statutory claim that it iseligible to bail out
under §§4 and 5, and that claim is
sufficient to re-solve the appeal. Pp.
6–11.
2. The Act must be interpreted to permit all
political subdivisions,including the district, to
seek to bail out from the preclearance
re-quirements. It is undisputed that the district
is a “political subdivi-sion” in the
ordinary sense, but the Act also provides a
narrower definition in §14(c)(2): “
‘[P]olitical subdivision’ shall
mean any countyor parish, except that where
registration for voting is not conducted under the
supervision of a county or parish, the term shall
include any other subdivision of a State which
conducts registration for vot-ing.” The court
below concluded that the district did not qualify
for§4(a) bailout under this definition, but
specific precedent, the Act’s structure, and
underlying constitutional concerns compel a
broaderreading.
This Court has already established that
§14(c)(2)’s definition doesnot apply to
the term “political subdivision” in
§5’s preclearance pro-vision. See, e.g.,
United States v. Sheffield Bd. of Comm’rs, 435
U. S.
110. Rather, the “definition was intended
to operate only for pur-poses of determining which
political units in nondesignated States may be
separately designated for coverage under
§4(b).” Id., at 128–
129. ”[O]nce a State has been
[so] designated . . . , [the]
definition . . . has no operative significance in
determining [§5’s] reach.”
Dougherty County Bd. of Ed. v. White, 439 U. S. 32,
44. In light of these deci-sions,
§14(c)(2)’s definition should not
constrict the availability of bailout either.
The Government responds that any such argument
is foreclosed by City of Rome. In 1982, however,
Congress expressly repudiated City of Rome. Thus,
City of Rome’s logic is no longer applicable.
The Gov-
Cite as: 557 U. S. ____ (2009) 3
Syllabus
ernment’s contention that the district is
subject to §5 under Sheffield not because it
is a “political subdivision” but because
it is a “State” iscounterintuitive and
similarly untenable after the 1982 amendments.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 suc-cessfully bailed out of
the Act. It is unlikely that Congress intended the
provision to have such limited effect. Pp.
11–17.
573 F. Supp. 2d 221, reversed and remanded.
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 anddissenting in part.
_________________
_________________
Cite as: 557 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal
revision before publication in thepreliminary print
of the United States Reports. Readers are requested
tonotify the Reporter of Decisions, Supreme Court
of the United States, Wash-ington, D. C. 20543, of
any typographical or other formal errors, in
orderthat corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 08–322
NORTHWEST AUSTIN MUNICIPAL UTILITY
DIS-
TRICT NUMBER ONE, APPELLANT v. ERIC
H.
HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA
[June 22, 2009]
CHIEF JUSTICE ROBERTS delivered the opinion of
theCourt.
The plaintiff in this case is a small utility
district rais-ing a big question—the
constitutionality of §5 of the Vot-ing Rights
Act. The district has an elected board, and is
required by §5 to seek preclearance from
federal authori-ties in Washington, D. C., before
it can change anything about those elections. This
is required even though there has never been any
evidence of racial discrimination invoting in the
district.
The district filed suit seeking relief from
these preclear-ance obligations under the
“bailout” provision of the Voting Rights
Act. That provision allows the release of a
“political subdivision” from the
preclearance requirements if certain rigorous
conditions are met. The court below denied relief,
concluding that bailout was unavailable to a
politicalsubdivision like the utility district that
did not register its own voters. The district
appealed, arguing that the Act imposes no such
limitation on bailout, and that if it does, the
preclearance requirements are unconstitutional.
2
NORTHWEST AUSTIN MUNICIPAL UTIL.
DIST.
NO. ONE v. HOLDER
Opinion of the Court
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
seekbailout. We therefore reverse, and do not reach
the consti-tutionality of §5.
I
A
The Fifteenth Amendment promises that the
“right ofcitizens of the United States to vote
shall not be denied or abridged . . . on account of
race, color, or previous condi-tion of
servitude.” U. S. Const., Amdt. 15, §1.
In addition to that self-executing right, the
Amendment also gives Congress the “power to
enforce this article by
appropriatelegislation.” §2. The first
century of congressional en-forcement of the
Amendment, however, can only be re-garded as a
failure. Early enforcement Acts were
incon-sistently applied and repealed with the rise
of Jim Crow. South Carolina v. Katzenbach, 383 U.
S. 301, 310 (1966);
A. Keyssar, The Right to Vote 105–111
(2000). Another series of enforcement statutes in
the 1950s and 1960s depended on individual lawsuits
filed by the Department of Justice. But litigation
is slow and expensive, and the States were creative
in “contriving new rules” to
continueviolating the Fifteenth Amendment “in
the face of adversefederal court decrees.”
Katzenbach, supra, at 335; Riley v. Kennedy, 553 U.
S. ___, ___ (2008) (slip op., at 2).
Congress responded with the Voting Rights Act.
Section 2 of the Act operates nationwide; as it
exists today, thatprovision forbids any
“standard, practice, or procedure” that
“results in a denial or abridgment of the
right of anycitizen of the United States to vote on
account of race or color.” 42 U. S. C.
§1973(a). Section 2 is not at issue in
Cite as: 557 U. S. ____ (2009) 3
Opinion of the Court
this case.
The remainder of the Act constitutes a
“scheme of strin-gent remedies aimed at areas
where voting discrimination has been most
flagrant.” Katzenbach, supra, at 315. Rather
than continuing to depend on case-by-case
litiga-tion, the Act directly pre-empted the most
powerful tools of black disenfranchisement in the
covered areas. All literacy tests and similar
voting qualifications were abol-ished by §4 of
the Act. Voting Rights Act of 1965,
§§4(a)– (d), 79 Stat. 438–439.
Although such tests may have beenfacially neutral,
they were easily manipulated to keepblacks from
voting. The Act also empowered federal exam-iners
to override state determinations about who was
eligible to vote. §§ 6, 7, 9, 13, id., at
439–442, 444–445.
These two remedies were bolstered by §5,
which sus-pended all changes in state election
procedure until they were submitted to and approved
by a three-judge FederalDistrict Court in
Washington, D. C., or the Attorney Gen-eral. Id.,
at 439, codified as amended at 42 U. S. C.
§1973c(a). Such preclearance is granted only
if the changeneither “has the purpose nor will
have the effect of deny-ing or abridging the right
to vote on account of race orcolor.” Ibid. We
have interpreted the requirements of §5to
apply not only to the ballot-access rights
guaranteed by§4, but to drawing district lines
as well. Allen v. State Bd. of Elections, 393 U. S.
544, 564–565 (1969).
To confine these remedies to areas of flagrant
disenfran-chisement, 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. §4(b), 79 Stat. 438. Congress
recog-nized that the coverage formula it had
adopted “might bring within its sweep
governmental units not guilty of any unlawful
discriminatory voting practices.” Briscoe v.
Bell, 432 U. S. 404, 411 (1977). It therefore
“afforded such jurisdictions immediately
available protection in the form
4
NORTHWEST AUSTIN MUNICIPAL UTIL.
DIST.
NO. ONE v. HOLDER
Opinion of the Court
of . . . [a] ‘bailout’
suit.” Ibid.
To bail out under the current provision, a
jurisdictionmust seek a declaratory judgment from a
three-judge District Court in Washington, D. C. 42
U. S. C. §§1973b(a)(1), 1973c(a). It must
show that for the previ-ous 10 years it has not
used any forbidden voting test, hasnot been subject
to any valid objection under §5, and has not
been found liable for other voting rights
violations; it must also show that it has
“engaged in constructive effortsto eliminate
intimidation and harassment” of voters, and
similar measures.
§§1973b(a)(1)(A)–(F). The
AttorneyGeneral can consent to entry of judgment in
favor of bail-out if the evidence warrants it,
though other interested parties are allowed to
intervene in the declaratory judg-ment action.
§1973b(a)(9). There are other restrictions: To
bail out, a covered jurisdiction must show that
everyjurisdiction in its territory has complied
with all of these requirements. §1973b(a)(3).
The District Court also retains continuing
jurisdiction over a successful bailoutsuit for 10
years, and may reinstate coverage if any viola-tion
is found. §1973b(a)(5).
As enacted, §§4 and 5 of the Voting
Rights Act weretemporary provisions. They were
expected to be in effect for only five years.
§4(a), 79 Stat. 438. We upheld thetemporary
Voting Rights Act of 1965 as an appropriate
exercise of congressional power in Katzenbach,
explainingthat “[t]he constitutional
propriety of the Voting RightsAct of 1965 must be
judged with reference to the historicalexperience
which it reflects.” 383 U. S., at 308. We
con-cluded that the problems Congress faced when it
passedthe Act were so dire that “exceptional
conditions [could] justify legislative
measures not otherwise appropriate.” Id., at
334–335 (citing Home Building & Loan Assn.
v. Blaisdell, 290 U. S. 398 (1934), and Wilson v.
New, 243
U. S. 332 (1917)).Congress reauthorized the Act
in 1970 (for 5 years),
Cite as: 557 U. S. ____ (2009) 5
Opinion of the Court
1975 (for 7 years), and 1982 (for 25 years). The
coverageformula 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 assessingthese criteria moved
from 1964 to include 1968 and even-tually 1972. 42
U. S. C. §1973b(b). We upheld each of these
reauthorizations against constitutional
challenges,finding that circumstances continued to
justify the provi-sions. Georgia v. United States,
411 U. S. 526 (1973); City of Rome v. United
States, 446 U. S. 156 (1980); Lopez v. Monterey
County, 525 U. S. 266 (1999). Most recently,
in2006, Congress extended §5 for yet another
25 years.Fannie Lou Hamer, Rosa Parks, and Coretta
Scott KingVoting Rights Act Reauthorization and
Amendments Actof 2006, 120 Stat. 577. The 2006 Act
retained 1972 as the last baseline year for
triggering coverage under §5. It is that
latest extension that is now before us.
B Northwest Austin Municipal Utility District
NumberOne was created in 1987 to deliver city
services to resi-dents of a portion of Travis
County, Texas. It is governed by a board of five
members, elected to staggered terms offour years.
The district does not register voters but is
responsible for its own elections; for
administrative rea-sons, those elections are run by
Travis County. Because the district is located in
Texas, it is subject to the obliga-tions of
§5, although there is no evidence that it has
ever discriminated on the basis of race. The
district filed suit in the District Court for the
Dis-trict of Columbia, seeking relief under the
statute’s bailoutprovisions and arguing in the
alternative that, if inter-preted to render the
district ineligible for bailout, §5
wasunconstitutional. The three-judge District Court
rejected both claims. Under the statute, only a
“State or political subdivision” is
permitted to seek bailout, 42 U. S. C.
6
NORTHWEST AUSTIN MUNICIPAL UTIL.
DIST.
NO. ONE v. HOLDER
Opinion of the Court
§1973b(a)(1)(A), and the court concluded
that the district was not a political subdivision
because that term includesonly “counties,
parishes, and voter-registering subunits,”
Northwest Austin Municipal Util. Dist. No. One v.
Mu-kasey, 573 F. Supp. 2d 221, 232 (2008). Turning
to thedistrict’s constitutional challenge, the
court concluded thatthe 25-year extension of
§5 was constitutional both be-cause
“Congress . . . rationally concluded that
extending [§]5 was necessary to
protect minorities from continuedracial
discrimination in voting” and because
“the 2006Amendment qualifies as a congruent
and proportional response to the continuing problem
of racial discrimina-tion in voting.” Id., at
283. We noted probable jurisdic-tion, 555 U. S. ___
(2009), and now reverse.
II The historic accomplishments of the Voting
Rights Act are undeniable. When it was first
passed, unconstitu-tional 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 athigher 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 tominority voter registration and voter
turnout that were in place prior to the [Voting
Rights Act] have been elimi-nated.” Id.,
at 12; Bartlett v. Strickland, 556 U. S. 1, ___
(2009) (slip op., at 5) (plurality opinion)
(“Passage of theVoting 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 ofour
citizens: the right to vote”).
Cite as: 557 U. S. ____ (2009) 7
Opinion of the Court
At the same time, §5, “which
authorizes federal intru-sion into sensitive areas
of state and local policymaking, imposes
substantial ‘federalism costs.’”
Lopez, supra, at 282 (quoting Miller v. Johnson,
515 U. S. 900, 926 (1995)).These federalism costs
have caused Members of this Court to express
serious misgivings about the constitutionality of
§5. Katzenbach, 383 U. S., at 358–362
(Black, J., concur-ring and dissenting); Allen, 393
U. S., at 586, n. 4 (Harlan, J., concurring in part
and dissenting in part); Georgia, supra, at 545
(Powell, J., dissenting); City of Rome, 446
U. S., at 209–221 (Rehnquist, J.,
dissenting); id., at 200– 206 (Powell, J.,
dissenting); Lopez, 525 U. S., at 293–298
(THOMAS, J., dissenting); id., at 288 (KENNEDY, J.,
concur-ring in judgment).
Section 5 goes beyond the prohibition of the
FifteenthAmendment by suspending all changes to
state electionlaw—however innocuous—until
they have been precleared by federal authorities in
Washington, D. C. The preclear-ance requirement
applies 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 Romehave unquestionably improved. Things
have changed inthe South. Voter turnout and
registration rates now approach parity. Blatantly
discriminatory evasions offederal decrees are rare.
And minority candidates holdoffice at unprecedented
levels. See generally H. R. Rep. No. 109–478,
at 12–18.
These improvements are no doubt due in
significantpart to the Voting Rights Act itself,
and stand as a monu-ment to its success. Past
success alone, however, is not adequate
justification to retain the preclearance
require-ments. See Issacharoff, Is Section 5 of the
Voting Rights
8
NORTHWEST AUSTIN MUNICIPAL UTIL.
DIST.
NO. ONE v. HOLDER
Opinion of the Court
Act a Victim of Its Own Success? 104 Colum. L.
Rev. 1710 (2004). It may be that these improvements
are insuffi-cient and that conditions continue to
warrant preclearance under the Act. But the Act
imposes current burdens andmust be justified by
current needs.
The Act also differentiates between the States,
despite our historic tradition that all the States
enjoy “equalsovereignty.” 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 ap-peared.”
Katzenbach, supra, at 328–329 (emphasisadded).
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
ar-gument that the preclearance requirements in one
Statewould be unconstitutional in another. See
Georgia v. Ashcroft, 539 U. S. 461, 491–492
(2003) (KENNEDY, J., concurring) (“Race cannot
be the predominant factor inredistricting 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 Amend-ment or §2 seem to be what
save it under §5”). Additional
constitutional concerns are raised in saying that
thistension between §§2 and 5 must
persist in covered juris-dictions and not
elsewhere.
The evil that §5 is meant to address may no
longer be concentrated in the jurisdictions singled
out for preclear-ance. The statute’s coverage
formula is based on data that is now more than 35
years old, and there is considerableevidence that
it fails to account for current political
condi-tions. For example, the racial gap in voter
registration
Cite as: 557 U. S. ____ (2009) 9
Opinion of the Court
and turnout is lower in the States originally
covered by §5than it is nationwide. E. Blum
& L. Campbell, Assess-ment of Voting Rights
Progress in Jurisdictions CoveredUnder Section Five
of the Voting Rights Act 3–6 (Ameri-can
Enterprise Institute, 2006). Congress heard
warnings from supporters of extending §5 that
the evidence in therecord did not address
“systematic differences between the covered
and the non-covered areas of the United
States[,] . . . and, in fact, the evidence
that is in the record suggests that there is more
similarity than difference.” The Con-tinuing
Need for Section 5 Pre-Clearance: Hearing before
the Senate Committee on the Judiciary, 109th Cong.,
2dSess., 10 (2006) (statement of Richard H.
Pildes); see also Persily, The Promise and Pitfalls
of the New Voting RightsAct, 117 Yale L. J. 174,
208 (2007) (“The most one can sayin defense of
the [coverage] formula is that it is the
best of the politically feasible alternatives or
that changing the formula would . . . disrupt
settled expectations”).
The parties do not agree on the standard to
apply indeciding whether, in light of the foregoing
concerns, Con-gress 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 orremedied 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
isenough that the legislation be a
“‘rational means to effec-tuate the
constitutional prohibition,’” Brief for
FederalAppellee 6, quoting Katzenbach, supra, at
324. That question has been extensively briefed in
this case, but weneed not resolve it. The
Act’s preclearance requirementsand its
coverage formula raise serious constitutional
ques-tions under either test.
In assessing those questions, we are keenly
mindful of our institutional role. We fully
appreciate that judging
10
NORTHWEST AUSTIN MUNICIPAL UTIL.
DIST.
NO. ONE v. HOLDER
Opinion of the Court
the constitutionality of an Act of Congress is
“the gravestand most delicate duty that this
Court is called on toperform.” Blodgett v.
Holden, 275 U. S. 142, 147–148 (1927) (Holmes,
J., concurring). “The Congress is a co-equal
branch of government whose Members take the same
oath we do to uphold the Constitution of the
UnitedStates.” 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 recordin
support of its decision to extend the preclearance
re-quirements, a record the District Court
determined “docu-ment[ed] contemporary
racial discrimination in coveredstates.” 573
F. Supp. 2d, at 265. The District Court also found
that the record “demonstrat[ed] that
section 5 pre-vents discriminatory voting
changes” by “quietly but effectively
deterring discriminatory changes.” Id., at
264.
We will not shrink from our duty “as the
bulwar[k] of a limited constitution against
legislative encroachments,”The Federalist No.
78, p. 526 (J. Cooke ed. 1961) (A. Ham-ilton), but
“[i]t is a well-established principle
governing the prudent exercise of this Court’s
jurisdiction that nor-mally the Court will not
decide a constitutional question if there is some
other ground upon which to dispose of
thecase,” Escambia County v. McMillan, 466 U.
S. 48, 51 (1984) (per curiam). Here, the district
also raises a statu-tory claim that it is eligible
to bail out under §§4 and 5.
JUSTICE THOMAS argues that the principle of
constitu-tional 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 1–3 (opinionconcurring in
judgment in part and dissenting in part).
We disagree. The district expressly describes
its consti-tutional challenge to §5 as being
“in the alternative” to its
Cite as: 557 U. S. ____ (2009) 11
Opinion of the Court
statutory argument. See Brief for Appellant 64
(“[T]heCourt should reverse the
judgment of the district courtand render judgment
that the district is entitled to use the bailout
procedure or, in the alternative, that §5
cannot be constitutionally applied to the
district”). The district’s counsel
confirmed this at oral argument. See Tr. of Oral
Arg. 14 (“[Question:] [D]o you
acknowledge that if we find in your favor on the
bailout point we need not reach the constitutional
point? [Answer:] I do acknowledge
that”). We therefore turn to the
district’s statutory argument.
III Section 4(b) of the Voting Rights Act
authorizes a bail-out suit by a “State or
political subdivision.” 42 U. S. C.
§1973b(a)(1)(A). There is no dispute that the
district is a political subdivision of the State of
Texas in the ordinary sense of the term. See, e.g.,
Black’s Law Dictionary 1197 (8th ed. 2004)
(“A division of a state that exists primarily
to discharge some function of local
government”). The district was created under
Texas law with “powers ofgovernment”
relating to local utilities and natural re-sources.
Tex. Const., Art. XVI, §59(b); Tex. Water
CodeAnn. §54.011 (West 2002); see also Bennett
v. Brown Cty. Water Improvement Dist. No. 1, 272 S.
W. 2d 498, 500 (Tex. 1954) (“[W]ater
improvement district[s] . . . are held to
be political subdivisions of the State”
(internal quota-tion marks omitted)).The Act,
however, also provides a narrower statutory
definition in §14(c)(2):
“‘[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 other subdivision of a State which
conducts registration for voting.” 42 U. S. C.
§1973l(c)(2). The District Court concluded
that this defini-tion applied to the bailout
provision in §4(a), and that the district did
not qualify, since it is not a county or parish
12
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NO. ONE v. HOLDER
Opinion of the Court
and does not conduct its own voter
registration.
“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§4(a) considered in isolation from the
rest of the statute andour prior cases, the
District Court’s approach might well be
correct. But here specific precedent, the structure
of the Voting Rights Act, and underlying
constitutional concernscompel a broader reading of
the bailout provision.
Importantly, we do not write on a blank slate.
Our decisions have already established that the
statutorydefinition in §14(c)(2) does not
apply to every use of the term “political
subdivision” in the Act. We have, for
ex-ample, concluded that the definition does not
apply to the preclearance obligation of §5.
According to its text, §5 applies only
“[w]henever a [covered] State
or political sub-division” enacts or
administers a new voting practice. Yet in Sheffield
Bd. of Comm’rs, 435 U. S. 110, we rejected the
argument by an Alabama city that it was neither a
State nor a political subdivision as defined in the
Act, and there-fore did not need to seek
preclearance of a voting change.The dissent agreed
with the city, pointing out that the citydid not
meet the statutory definition of “political
subdivi-sion” and therefore could not be
covered. Id., at 141–144 (opinion of STEVENS,
J.). The majority, however, relying on the purpose
and structure of the Act, concluded thatthe
“definition was intended to operate only for
purposesof determining which political units in
nondesignated States may be separately designated
for coverage under §4(b).” Id., at
128–129; see also id., at 130, n. 18
(“Con-gress’s exclusive objective in
§14(c)(2) was to limit thejurisdictions which
may be separately designated for coverage under
§4(b)”).
Cite as: 557 U. S. ____ (2009) 13
Opinion of the Court
We reaffirmed this restricted scope of the
statutorydefinition 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 §14(c)(2), it
“d[id] not come within the pur-view of
§5.” Id., at 43, 44. We responded:
“This contention is squarely foreclosed by
our deci-sion last Term in [Sheffield].
There, we expressly re-jected the suggestion that
the city of Sheffield was be-yond 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 aState has been designated for
coverage, §14(c)(2)’sdefinition of
political subdivision has no operative
sig-nificance in determining the reach of
§5.” Id., at 44 (internal quotation marks
omitted).
According to these decisions, then, the
statutory defini-tion of “political
subdivision” in §14(c)(2) does not apply
toevery use of the term “political
subdivision” in the Act. Even the intervenors
who oppose the district’s bailout concede, for
example, that the definition should not apply to
§2, which bans racial discrimination in voting
by “anyState or political subdivision,”
42 U. S. C. §1973(a). See Brief for
Intervenor-Appellee Texas State Conference ofNAACP
Branches et al. 17 (citing Smith v. Salt River
Project Agricultural Improvement and Power Dist.,
109
F. 3d 586, 592–593 (CA9 1997)); see also
United States v. Uvalde Consol. Independent School
Dist., 625 F. 2d 547, 554 (CA5 1980)
(“[T]he Supreme Court has held that
thisdefinition [in §14(c)(2)] limits
the meaning of the phrase‘State or political
subdivision’ only when it appears incertain
parts of the Act, and that it does not confine the
phrase as used elsewhere in the Act”). In
light of ourholdings that the statutory definition
does not constrict the scope of preclearance
required by §5, the district ar-
14
NORTHWEST AUSTIN MUNICIPAL UTIL.
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NO. ONE v. HOLDER
Opinion of the Court
gues, it only stands to reason that the
definition shouldnot constrict the availability of
bailout from those pre-clearance requirements
either.
The Government responds that any such argument
isforeclosed 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
§4(a) bailout.’” Brief for Fed-eral
Appellee 14 (quoting City of Rome, supra, at
168).
Even if that is what City of Rome held, the
premises ofits 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 §5, concluding that
“politicalunits of a covered jurisdiction
cannot independently bring a §4(a) bailout
action.” 446 U. S., at 167. We concluded that
the statute as then written authorized a bailout
suit only by a “State” subject to the
coverage formula, or a“political subdivision
with respect to which [coverage]
determinations have been made as a separate
unit,” id., at 164, n. 2 (quoting 42 U. S. C.
§1973b(a) (1976 ed.)); see also 446 U. S., at
163–169. Political subdivisions covered
because they were part of a covered State, rather
thanbecause of separate coverage determinations,
could not separately bail out. As JUSTICE STEVENS
put it, “[t]hepolitical subdivisions
of a covered State” were “not entitledto
bail out in a piecemeal fashion.” Id., at 192
(concurring opinion).
In 1982, however, Congress expressly repudiated
City of Rome and instead embraced
“piecemeal” bailout. As partof an
overhaul of the bailout provision, Congress amended
the Voting Rights Act to expressly provide that
bailoutwas 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,
96 Stat. 131,
Cite as: 557 U. S. ____ (2009) 15
Opinion of the Court
codified at 42 U. S. C. §1973b(a)(1)
(emphasis added). In other words, Congress decided
that a jurisdiction coveredbecause it was within a
covered State need not remain covered for as long
as the State did. If the subdivision met the
bailout requirements, it could bail out, even if
the State could not. In light of these amendments,
our logic for denying bailout in City of Rome is no
longer applicableto the Voting Rights Act—if
anything, that logic compelsthe opposite
conclusion.
Bailout and preclearance under §5 are now
governed by aprinciple of symmetry. “Given the
Court’s decision in Shef-field that all
political units in a covered State are to betreated
for §5 purposes as though they were
‘political sub-divisions’ of that State,
it follows that they should also betreated as such
for purposes of §4(a)’s bailout
provisions.” City of Rome, supra, at 192
(STEVENS, J., concurring).
The Government contends that this reading of
Sheffield is mistaken, and that the district is
subject to §5 under ourdecision in Sheffield
not because it is a “political
subdivi-sion” but because it is a
“State.” That would mean it could bail
out only if the whole State could bail out.
The assertion that the district is a State is at
least counterintuitive. We acknowledge, however,
that therehas been much confusion over why
Sheffield held the cityin that case to be covered
by the text of §5. See City of Rome, 446 U.
S., at 168–169; id., at 192 (STEVENS, J.,
concurring); see also Uvalde Consol. Independent
School Dist. v. United States, 451 U. S. 1002,
1004, n. 4 (1981) (Rehnquist, J., dissenting from
denial of certiorari) (“[T]hisCourt
has not yet settled on the proper construction of
the term ‘political
subdivision’”).
But after the 1982 amendments, the
Government’s position is untenable. If the
district is considered the State, and therefore
necessarily subject to preclearance solong as Texas
is covered, then the same must be true of all other
subdivisions of the State, including counties.
That
16
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NO. ONE v. HOLDER
Opinion of the Court
would render even counties unable to seek
bailout so long as their State was covered. But
that is the very restrictionthe 1982 amendments
overturned. Nobody denies that counties in a
covered State can seek bailout, as several of them
have. See Voting Rights Act: Section 5 of the
Act—History, Scope, and Purpose: Hearing
Before the Subcom-mittee on the Constitution of the
House Committee on the Judiciary, 109th Cong., 1st
Sess., 2599–2834 (2005) (de-tailing bailouts).
Because such piecemeal bailout is now permitted, it
cannot be true that §5 treats every
govern-mental unit as the State itself.
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 theAct. 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 havesuch limited effect. See
United States v. Hayes, 555 U. S. ___, ____ (2009)
(slip op., at 10).
We therefore hold that all political
subdivisions—not only those described in
§14(c)(2)—are eligible to file a bailout
suit.
* * * More than 40 years ago, this Court
concluded that“exceptional conditions”
prevailing in certain parts of thecountry justified
extraordinary legislation otherwise un-familiar 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 ques-tion
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
Cite as: 557 U. S. ____ (2009) 17
Opinion of the Court
preclearance requirements.
The judgment of the District Court is reversed,
and thecase is remanded for further proceedings
consistent withthis opinion.
It is so ordered.
_________________
_________________
Cite as: 557 U. S. ____ (2009) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
No. 08–322
NORTHWEST AUSTIN MUNICIPAL UTILITY
DIS-
TRICT NUMBER ONE, APPELLANT v. ERIC
H.
HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA
[June 22, 2009]
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 §5 of
the VRA is unconstitutional.
Because the Court’s statutory decision does
not provide appellant with full relief, I conclude
that it is inappropriate to apply the
constitutional avoidance doctrine
in this case. I would therefore decide the
constitutional
issue presented and hold that §5 exceeds
Congress’ power to enforce the Fifteenth
Amendment.
I The doctrine of constitutional avoidance
factors heavily in the Court’s conclusion that
appellant is eligible for bailout as a
“political subdivision” under §4(a)
of the VRA. See ante, at 11. Regardless of the
Court’s resolution of the statutory question,
I am in full agreement that this case raises
serious questions concerning the constitutionality
of §5 of the VRA. But, unlike the Court, I do
not believe that the doctrine of constitutional
avoidance is applicable here. The ultimate relief
sought in this case is not bailout eligi2
NORTHWEST AUSTIN MUNICIPAL UTIL.
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Opinion of THOMAS, J.
bility—it is bailout itself. See First
Amended Complaint in No. 06–1384 (DDC), p. 8,
Record, Doc. 83 (“Plaintiff requests the Court
to declare that the district has met the bail-out
requirements of §4 of the [VRA] and
that the preclearance requirements of §5 . . .
no longer apply to the district; or, in the
alternative, that §5 of the Act as applied to
the district is an unconstitutional overextension
of Congress’s enforcement power to remedy past
violations of the Fifteenth Amendment”).
Eligibility for bailout turns on the statutory
questionaddressed by the Court—the proper
definition of “political subdivision” in
the bailout clauses of §4(a) of the
VRA.Entitlement to bailout, however, requires a
covered “political
subdivision” to submit substantial evidence
indicating
that it is not engaging in “discrimination
in voting onaccount of race,” see 42 U. S. C.
§1973b(a)(3). The Court properly declines to
give appellant bailout because appellant
has not yet proved its compliance with the
statutory requirements for such relief. See
§§1973b(a)(1)–(3). In fact, the
record below shows that appellant’s factual
entitlement
to bailout is a vigorously contested issue. See,
e.g., NAACP’s Statement of Undisputed Material
Facts inNo. 06–1384 (DDC), pp. 490–492,
Record, Doc. 100; Attorney
General’s Statement of Uncontested Material
Facts inNo. 06–1384 (DDC), ¶¶19, 59,
Record, Doc. 98. Given its resolution of the
statutory question, the Court has thuscorrectly
remanded the case for resolution of
appellant’sfactual entitlement to bailout. See
ante, at 16.
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, theavoidance 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
readCite
as: 557 U. S. ____ (2009) 3
Opinion of THOMAS, J.
ing.” Clark v. Martinez, 543 U. S. 371, 395
(2005) (THOMAS, J., dissenting). To the extent that
constitutional avoidance is a worthwhile tool of
statutory construction, it is because it allows a
court to dispose of an entire case ongrounds that
do not require the court to pass on a
statute’sconstitutionality. See Ashwander v.
TVA, 297 U. S. 288, 347 (1936) (Brandeis, J.,
concurring) (“The Court will not pass upon a
constitutional question although properly presented
by the record, if there is also some other
groundupon which the case may be disposed
of”); see also, e.g., Mayor of Philadelphia v.
Educational Equality League, 415 U. S. 605, 629
(1974). The doctrine “avoids decision of
constitutional questions where possible, and it
permits one lawsuit, rather than two, to resolve
the entire controversy.”
C. Wright, The Law of Federal Courts §19,
p. 104(4th ed. 1983). Absent a determination that
appellant is not just eligible for bailout, but is
entitled to it, this casewill not have been
entirely disposed of on a nonconstitutional
ground. Cf. Tr. of Oral Arg. 14
(“[I]f the Court wereto give us
bailout . . . the Court might choose on its ownnot
to reach the constitutional issues because we would
receive relief”). Invocation of the doctrine
of constitutional avoidance is therefore
inappropriate in this case.
The doctrine of constitutional avoidance is also
unavailable
here because an interpretation of §4(a)
that merely makes more political subdivisions
eligible for bailout does not render §5
constitutional and the Court notably does not
suggest otherwise. See Clark, supra, at 396
(THOMAS, J., dissenting). Bailout eligibility is a
distant prospect for most covered jurisdictions. To
obtain bailout a covered jurisdiction must satisfy
numerous objective criteria. It must show that
during the previous 10 years: (A) no “test or
device has been used within such State or
politicalsubdivision for the purpose or with the
effect of denying or abridging the right to vote on
account of race or color”; (B)“no final
judgment of any court of the United States . .
.
4
NORTHWEST AUSTIN MUNICIPAL UTIL.
DIST.
NO. ONE v. HOLDER
Opinion of THOMAS, J.
has determined that denials or abridgments of
the right to vote on account of race or color have
occurred anywhere in the territory of” the
covered jurisdiction; (C) “no Federal
examiners or observers . . . have been assigned
to” the covered jurisdiction; (D) the covered
jurisdiction has fullycomplied with §5; and
(E) “the Attorney General has not interposed
any objection (that has not been overturned bya
final judgment of a court) and no declaratory
judgmenthas been denied under
[§5].”
§§1973b(a)(1)(A)–(E). The
jurisdiction also has the burden of presenting
“evidence ofminority participation, including
evidence of the levels ofminority group
registration and voting, changes in suchlevels over
time, and disparities between minority-groupand
non-minority-group participation.”
§1973b(a)(2).
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 subjectivecriteria: 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 constructiveefforts 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
votingfor every person of voting age and the
appointment ofminority persons as election
officials throughout the jurisdiction
and at all stages of the election and
registration process.”
§§1973b(a)(1)(F)(i)–(iii).
As a result, a covered jurisdiction meeting each
of theobjective conditions could nonetheless be
denied bailoutbecause it has not, in the subjective
view of the United States District Court for the
District of Columbia, engaged in sufficiently
“constructive efforts” to expand voting
opportunities, §1973b(a)(1)(F)(iii). Congress,
of course,has complete authority to set the terms
of bailout. But its
Cite as: 557 U. S. ____ (2009) 5
Opinion of THOMAS, J.
promise of a bailout opportunity has, in the
great majority of cases, turned out to be no more
than a mirage. As the Court notes, only a handful
“of the more than 12,000covered political
subdivisions . . . have successfully bailed out of
the Act.” Ante, at 16;1 see Williamson, The
1982 Amendments to the Voting Rights Act: A
Statutory Analysis
of the Revised Bailout Provisions, 62 Wash. U.
L. Q. 1, 42 (1984) (explaining that “the
conditions for terminationof coverage have been
made so restrictive that bailout willcontinue to be
impossible for most jurisdictions”).
Accordingly,
bailout eligibility does not eliminate the issue
of §5’sconstitutionality.
II The Court quite properly alerts Congress that
§5 teststhe outer boundaries of its Fifteenth
Amendment enforcement
authority and may not be constitutional. See
ante, at 7–9. And, although I respect the
Court’s careful approach to this weighty
issue, I nevertheless believe it isnecessary to
definitively resolve that important question.For
the reasons set forth below, I conclude that the
lack of current evidence of intentional
discrimination with respectto voting renders
§5 unconstitutional. The provision canno
longer be justified as an appropriate mechanism
forenforcement of the Fifteenth Amendment.
A
“The government of the United States is one
of delegated
powers alone. Its authority is defined and
limited ——————
1All 17 covered jurisdictions that have been
awarded bailout are fromVirginia, see ante, at
15–16, and all 17 were represented by the
sameattorney—a former lawyer in the Voting
Rights Section of the Department of Justice, see
Hebert, An Assessment of the Bailout Provisions of
the Voting Rights Act, in Voting Rights Act
Reauthorization of 2006,
p. 257, n. 1 (A. Henderson ed. 2007). Whatever
the reason for this anomaly, it only underscores
how little relationship there is between the
existence of bailout and the constitutionality of
§5.
6
NORTHWEST AUSTIN MUNICIPAL UTIL.
DIST.
NO. ONE v. HOLDER
Opinion of THOMAS, J.
by the Constitution. All powers not granted to
it by thatinstrument 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
ofvoting rights, this Court has consistently
recognized thatthe 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 Statesand their governments than the power
to determinewithin the limits of the Constitution
the qualifications oftheir own voters for state,
county, and municipal offices and the nature of
their own machinery for filling localpublic
offices.” Oregon v. Mitchell, 400 U. S. 112,
125 (1970) (opinion of Black, J.).
State autonomy with respect to the machinery of
selfgovernment
defines the States as sovereign entities rather
than mere provincial outposts subject to every
dictate of acentral governing authority. See U. S.
Const., Amdt. 10 (“The powers not delegated to
the United States by the Constitution, nor
prohibited by it to the States, are reserved
to the States respectively, or to the
people”); seealso Alden v. Maine, 527 U. S.
706, 713 (1999). In the main, the “Framers of
the Constitution intended the States to keep for
themselves, as provided in the Tenth Amendment, the
power to regulate elections.” Gregory v.
Ashcroft, 501 U. S. 452, 461–462 (1991)
(internal quotation
marks omitted).
To be sure, state authority over local elections
is notabsolute under the Constitution. The
Fifteenth Amendment
guarantees that the “right of citizens of
the UnitedStates to vote shall not be denied or
abridged by theUnited States or by any State on
account of race, color, or previous condition of
servitude,” §1, and it grants
Congress
Cite as: 557 U. S. ____ (2009) 7
Opinion of THOMAS, J.
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 Fifteenth Amendment
guards against “purposefully
discriminatory
denial or abridgment by government of thefreedom
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 appropriateenforcement of this ban
on discrimination.
There is certainly no question that the VRA
initially“was passed pursuant to
Congress’ authority under theFifteenth
Amendment.” Lopez v. Monterey County, 525
U. S. 266, 282 (1999). For example,
§§2 and 4(a) seek toimplement the
Fifteenth Amendment’s substantive command
by creating a private cause of action to enforce
§1 of the Fifteenth Amendment, see
§1973(a), and by banningdiscriminatory tests
and devices in covered jurisdictions,see
§1973b(a); see also City of Lockhart v. United
States, 460 U. S. 125, 139 (1983) (Marshall, J.,
concurring in part and dissenting in part)
(explaining that §2 reflects
Congress’
determination “that voting discrimination
was a nationwide problem” that called for a
“general prohibition of discriminatory
practices”). Other provisions of the VRA also
directly enforce the Fifteenth Amendment. See
§1973h (elimination of poll taxes that
effectively denycertain racial groups the right to
vote); §1973i(a) (“No person acting under
color of law shall fail or refuse to permit any
person to vote who is entitled to vote . . . or
willfully fail or refuse to tabulate, count, and
report such person’s vote”).
Section 5, however, was enacted for a different
purpose:
8
NORTHWEST AUSTIN MUNICIPAL UTIL.
DIST.
NO. ONE v. HOLDER
Opinion of THOMAS, J.
to prevent covered jurisdictions from
circumventing thedirect prohibitions imposed by
provisions such as §§2 and 4(a). See Reno
v. Bossier Parish School Bd., 520 U. S. 471, 477
(1997) (explaining that §§2 and 5
“combat differentevils” and “impose
very different duties upon the
States”).Section 5 “was a response to a
common practice in some jurisdictions of staying
one step ahead of the federal courts by passing new
discriminatory voting laws as soon as the old ones
had been struck down. That practice had
beenpossible because each new law remained in
effect until the Justice Department or private
plaintiffs were able tosustain the burden of
proving that the new law, too,
wasdiscriminatory.” Beer v. United States, 425
U. S. 130, 140 (1976) (internal quotation marks
omitted).
The rebellion against the enfranchisement of
blacks inthe 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
withcoordinated intimidation and violence. See,
e.g., L. McDonald, A Voting Rights Odyssey: Black
Enfranchisement
in Georgia 34 (2003) (“By 1872, the
legislative and executive branches of state
government . . . were onceagain 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, despiteratification of the Fifteenth
Amendment in 1870 . . .”).2 A
——————
2See also S. Rep. No. 41, 42d Cong., 2d Sess.,
pt. 7, p. 610 (1872)(quoting a Ku Klux Klan letter
warning a black man from Georgia to“
‘stay at home if you value your life, and not
vote at all, and advise allof your race to do the
same thing. You are marked and closely watched by
K. K. K. . . .’ ”); see also Jackson
Daily Mississippian, Dec. 29, 1887, reprinted in S.
Misc. Doc. No. 106, 50th Cong., 1st Sess., 14
(1888) (“[W]e hereby warn the negroes
that if any one of their race attempts to run for
office in the approaching municipal election he
does so at his supremest peril, and we further warn
any and all negroes of this city against
attempting, at their utmost hazard, by vote or
influence, to foist
Cite as: 557 U. S. ____ (2009) 9
Opinion of THOMAS, J.
soon-to-be victorious mayoral candidate in
Wilmington, North Carolina, for example, urged
white voters in an1898 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 testswere
particularly effective: “as of 1890 in . . .
States [withliteracy tests], more than
two-thirds of the adult Negroeswere 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 id.,
at 311, n. 10.3 Compounding the tests’
discriminatoryimpact on blacks, alternative voter
qualification laws suchas “grandfather
clauses, property qualifications, [and]
‘good character’ tests” were enacted
to protect those whiteswho were unable to pass the
literacy tests. Id., at 311; see
—————— on us again
this black and damnable machine miscalled a
governmentof our city” (publishing resolutions
passed by the Young White Men’s League of
Jackson)).
3Although tests had become the main tool for
disenfranchising blacks, state governments engaged
in violence into 1965. See Daniel, Tear Gas, Clubs
Halt 600 in Selma March, Washington Times
Herald,Mar. 8, 1965, pp. A1, A3 (“State
troopers and mounted deputies bombarded 600 praying
Negroes with tear gas today and then waded into
them with clubs, whips and ropes, injuring scores.
. . . The Negroesstarted out today to walk the 50
miles to Montgomery to protest to[Governor]
Wallace the denial of Negro voting rights in
Alabama”); Banner, Aid for Selma Negroes, N.
Y. Times, Mar. 14, 1965, p. E11 (“We should
remember March 7, 1965 as ‘Bloody Sunday in
Selma.’ It is now clear that the public
officials and the police of Alabama are atwar with
those citizens who are Negroes and who are
determined toexercise their rights under the
Constitution of the United States”).
10
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also Lopez, supra, at 297 (THOMAS, J.,
dissenting) (“Literacy
tests were unfairly administered; whites were
giveneasy questions, and blacks were given more
difficult questions,
such as the number of bubbles in a soap bar,
thenews contained in a copy of the Peking Daily,
the meaningof obscure passages in state
constitutions, and the definition
of terms such as habeas corpus” (internal
quotationmarks omitted)).
The Court had declared many of these “tests
and devices”
unconstitutional, see Katzenbach, supra, 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 rightto vote illusory for blacks
in the Jim Crow South. Despitethe 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, 1932)
(“SouthernStates were setting out to
accomplish an effective nullification
of the war measures of Congress”).
Thus, by 1965, Congress had every reason to
concludethat 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-caseenforcement of the
Fifteenth Amendment impossible, if not Sisyphean.
See id., at 309 (“Congress concluded thatthe
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
ofthe Fifteenth Amendment”); Rice, supra, at
513 (“Progress
Cite as: 557 U. S. ____ (2009) 11
Opinion of THOMAS, J.
was slow, particularly when litigation had to
proceed caseby 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) (“In1965, 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
experience”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 42 U. S. C. §1973b(b), directly
targeted the “insidious and pervasive evil
which had been perpetuatedin certain parts of our
country through unremitting and ingenious defiance
of the Constitution.” 383 U. S., at 309; see
also id., at 329 (“Congress began work with
reliableevidence of actual voting discrimination in
a great majority
of the States and political subdivisions
affected by the new remedies of the Act”).
According to the Court, it wasappropriate to
radically interfere with control over
localelections only in those jurisdictions with a
history of discriminatory
disenfranchisement as those were “the
geographic
areas where immediate action seemed
necessary.” Id., at 328. The Court believed it
was thus “permissible toimpose the new
remedies” on the jurisdictions covered under
§4(b) “at least in the absence of proof
that theyha[d] been free of substantial
voting discrimination in recent years.” Id.,
at 330.
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 cir12
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cumstances” 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 toenforce
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 50percentage 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 1956and
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 jurisdictionshad 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 rulesof
various kinds for the sole purpose of perpetuating
voting
discrimination in the face of adverse federal
courtdecrees” was working and could not be
defeated throughcase-by-case enforcement of the
Fifteenth Amendment. Id., at 335. This record also
clearly supported Congress’predictive judgment
that such “States might try similarmaneuvers
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 asan appropriate exercise of
congressional power under theFifteenth Amendment.
Id., at 330. It was only “[u]nder
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Opinion of THOMAS, J.
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 morestate 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” race,
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 7. 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 theAmendment’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 Amendmentenforcement 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., dis14
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Opinion of THOMAS, J.
senting) (“The preclearance requirement
both intrudes onthe 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
exactssignificant federalism costs”); ante, at
7 (“[Section] 5,which authorizes
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 hasdescribed 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 destroyslocal
control of the means of self-government, one of
thecentral values of our polity.” City of
Rome, supra, at 201 (Powell, J., dissenting). More
than 40 years after itsenactment, this intrusion
has become increasingly difficultto 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 selfdetermination—
the constitutionality of §5 has
alwaysdepended on the proven existence of
intentional discrimination
so extensive that elimination of it through
case-bycase
enforcement would be impossible. See Katzenbach,
383 U. S., at 308 (“Before enacting the
measure, Congressexplored 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
Cite as: 557 U. S. ____ (2009) 15
Opinion of THOMAS, J.
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 inoriginal).
The Court has never deviated from this
understanding.We have explained that prophylactic
legislation designed to enforce the Reconstruction
Amendments must “identifyconduct transgressing
the . . . substantive provisions” it seeks to
enforce and be tailored “to remedying or
preventing
such conduct.” Florida Prepaid
Postsecondary Ed. Expense Bd. v. College Savings
Bank, 527 U. S. 627, 639 (1999). Congress must
establish a “history and pattern” of
constitutional violations to establish the need for
§5 byjustifying a remedy that pushes the
limits of its constitutional
authority. Board of Trustees of Univ. of Ala. v.
Garrett, 531 U. S. 356, 368 (2001). As a result,
for §5 towithstand renewed constitutional
scrutiny, there must bea demonstrated connection
between the “remedial measures”
chosen and the “evil presented” in the
record madeby Congress when it renewed the Act.
City of Boerne v. Flores, 521 U. S. 507, 530
(1997). “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 theCourt to previously uphold §5 as
enforcing the FifteenthAmendment no longer exists.
Covered jurisdictions arenot now engaged in a
systematic campaign to deny black
16
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citizens access to the ballot through
intimidation and violence. And the days of
“grandfather clauses, propertyqualifications,
‘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 toengage in the “unremitting and
ingenious defiance of theConstitution,” 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
thatunderlay 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
preventativemeasure that has already served its
purpose. Those supporting
§5’s reenactment argue that without it
these jurisdictions would return to the racially
discriminatorypractices of 30 and 40 years ago. But
there is no evidencethat public officials stand
ready, if given the chance, toagain 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 coveredjurisdictions. Admitting that a
prophylactic law as broadas §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 Brieffor Southeastern
Legal Foundation as Amicus Curiae 6a– 7a
(hereinafter SLF Brief). Therefore, in contrast to
the Katzenbach Court’s finding that the
“registration of votCite
as: 557 U. S. ____ (2009) 17
Opinion of THOMAS, J.
ing-age whites ran roughly 50 percentage points
or moreahead of Negro registration” in these
States in 1964, see 383 U. S., at 313, since that
time this disparity has nearlyvanished. In 2006,
the disparity was only 3 percentagepoints 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
than the registration rate for whites in
noncovered states. See E. Blum & L. Campbell,
Assessment of VotingRights Progress in
Jurisdictions Covered Under Section Five of the
Voting Rights Act 3–6 (American Enterprise
Institute, 2006); see also S. Rep. No.
109–295, p. 11 (2006) (noting that
“presently in seven of the covered States,
African-Americans are registered at a rate higher
than the national average”; in two more, black
registration in the2004 election was
“identical to the national average”;
andin “California, Georgia, Mississippi, North
Carolina, and Texas, black registration and turnout
in the 2004 election . . . was higher than that for
whites”).
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 voter registrationand voter turnout
that were in place prior to the VRAhave been
eliminated”). Instead of relying on the kind
of evidence that the Katzenbach Court had found so
persuasive,
Congress instead 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
18
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voting within the covered jurisdictions. But
raciallypolarized 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
isnot 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.
Reform643, 665 (2006). The other evidence relied on
by Congress,such as §5 enforcement actions,
§§2 and 4 lawsuits, andfederal examiner
and observer coverage, also bears noresemblance 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 (DDC 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 neededto
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 historyof racial
discrimination”). Perfect compliance with the
Fifteenth Amendment’s substantive command is
not now—nor has it ever been—the
yardstick for determiningwhether Congress has the
power to employ broad prophylactic
legislation to enforce that Amendment. The
burden
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Opinion of THOMAS, J.
remains with Congress to prove that the extreme
circumstances
warranting §5’s enactment persist
today. A record of scattered infringement of the
right to vote is not a constitutionally
acceptable substitute.
* * * In 1870, the Fifteenth Amendment 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
acknowledgmentof §5’s unconstitutionality
represents a fulfillment of the Fifteenth
Amendment’s promise of full enfranchisementand
honors the success achieved by the VRA.
