Northwest Austin Mun. Util. Dist. One v. Mukasey, Civil Action No. 06-1384.

• Decision Date: 04 September 2008
• Docket Number: Civil Action No. 06-1384.
• Citation: 573 F.Supp.2d 221
• Parties: NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT NUMBER ONE, Plaintiff, v. Michael B. MUKASEY, Attorney General of the United States, et al., Defendants.
• Court: U.S. District Court — District of Columbia

573 F.Supp.2d 221

NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT NUMBER ONE, Plaintiff, v. Michael B. MUKASEY, Attorney General of the United States, et al., Defendants.

Civil Action No. 06-1384.

United States District Court, District of Columbia.

September 4, 2008.

COPYRIGHT MATERIAL OMITTED

Christian J. Ward, Gregory S. Coleman, Yetter & Warden, LLP, Austin, TX, Erik Scott Jaffe, Erik S. Jaffe, P.C., Washington, DC, for Plaintiff.

Thomas Christian Herren, Jr. Department of Justice Voting Section/Civil Rights Division, Seth P. Waxman Ariel B. Waldman Paul Reinherz Quitma Wolfson Wilmer Cutler Pickering Hale & Dorr, LLP Daniel A. Zibel Bredhoff & Kaiser, P.L.L.C. John Payton Wilmerhale Jon M. Greenbaum Lawyers' Committee for Civil Rights Under Law Michael J. Gottlieb Joseph E. Sandler Sachs, Greenbaum & Tayler Kristen M. Clarke NAACP Legal Defense & Educational Fund, Inc. Elliot M. Mincberg Judith Ellen Schaeffer People for the American Way Foundation Arthur B. Spitzer American Civil Liberties Union Michael J. Kator Kator, Parks & Weiser, PLLC Michael T. Kirkpatrick Public Citizen Litigation Group Washington, DC, Benjamin Jay Blustein, Miner, Barnhill & Galland, Chicago, IL, Dennis C. Hayes, National Association for the Advancement of Colored People, Baltimore, MD, Norman Jay Chachkin, Accord, NY, Debo P. Adegbile, Jenigh J. Garrett, Ryan P. Haygood, NAACP Legal Defense & Educational Fund, Inc., Samuel Spital, Holland & Knight, LLP, New York, NY, Nina Perales, Mexican American Legal Defense & Educational Fund, Inc., George Korbel, Jose Garza, Judith A. Sanders-Castro, Texas Riogrande Legal Aid, Inc., San Antonio, TX, J. Gerald Hebert, Alexandria, VA, Max Renea Hicks, Austin, TX, Moffatt Laughlin McDonald, American Civil Liberties Union Foundation, Inc., Atlanta, GA, for Defendants.

Paul March Smith, Jenner & Block LLP, Washington, DC, for Brennan Center for Justice at NYU School of Law.

Before FRIEDMAN and SULLIVAN, District Judges, and TATEL, Circuit Judge.

OPINION

DAVID S. TATEL, Circuit Judge:

Section 5 of the Voting Rights Act of 1965 prohibits "covered jurisdictions"— those states and political subdivisions with histories of racial discrimination in voting—from making any change in their voting procedures without first demonstrating to either the Attorney General or a three-judge panel of this court that the change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. Plaintiff, a municipal utility district in Texas, a covered jurisdiction, seeks a declaratory judgment exempting it from section 5's "preclearance" obligation. In the alternative, plaintiff challenges section 5's constitutionality, arguing that when Congress extended the provision in 2006 it lacked sufficient evidence of racial discrimination in voting to justify the provision's intrusion upon state sovereignty. We reject both claims. First, plaintiff is ineligible to seek a declaratory judgment exempting it from section 5 because it does not qualify as a "political subdivision" as defined in the Voting Rights Act. Second, applying the standard set forth by the Supreme Court in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), we conclude that given the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions, Congress's decision to extend section 5 for another twenty-five years was rational and therefore constitutional. Alternatively, we conclude that section 5's extension was constitutional even if, as plaintiff argues, its challenge is controlled by the stricter standard set forth in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Given section 5's tailored remedial scheme, the extension qualifies as a congruent and proportional response to the continuing problem of racial discrimination in voting.

This opinion is organized as follows. Part I describes the background of this case, including the Voting Rights Act's passage and key provisions; the two decisions in which the Supreme Court sustained section 5's constitutionality, Katzenbach and City of Rome v. United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980); the 2006 extension of section 5, which plaintiff challenges here; and the convening of this three-judge panel. See infra pp. 224-30. In Part II we explain why plaintiff is ineligible to seek a declaratory judgment exempting it from section 5. See infra pp. 230-35. In Part III we explain why we believe plaintiffs constitutional challenge is facial and why that challenge is governed by the standard set forth in Katzenbach. See infra pp. 235-46. Applying the Katzenbach standard in Part IV, we explain why Congress's decision to extend section 5 for another twenty-five years was constitutional. See infra pp. 246-79. In Part V we explain why section 5's extension survives even City of Boerne's more demanding test. See infra pp. 279-82. And finally, in Part VI we consider and reject two arguments plaintiff makes that could be construed as an as-applied challenge to section 5. See infra pp. 283-84.

I.

Ratified in 1870 after the Civil War, the Fifteenth Amendment guarantees that "[t]he 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." U.S. CONST. amend. XV, § 1. Yet following Reconstruction, "[t]he blight of racial discrimination in voting ... infected the electoral process in parts of our country for nearly a century." Katzenbach, 383 U.S. at 308, 86 S.Ct. 803. "Beginning in 1890," southern states "enacted tests ... specifically designed to prevent Negroes from voting," making "the ability to read and write a registration qualification." Id. at 310-11, 86 S.Ct. 803. Black citizens faced many other obstacles, including property qualifications, good character tests, and "[d]iscriminatory administration of voting qualifications." Id. at 311-12, 86 S.Ct. 803. Congress eventually responded with the Civil Rights Acts of 1957, 1960, and 1964, each of which "tried to cope with the problem by facilitating case-by-case litigation against voting discrimination." Id. at 313, 86 S.Ct. 803. This case-by-case approach, however, did "little to cure the problem." Id. Convinced that it confronted "an insidious and pervasive evil ... perpetrated ... through unremitting and ingenious defiance of the Constitution," Congress decided to adopt "sterner and more elaborate measures," id. at 309, 86 S.Ct. 803, by enacting a "complex scheme of stringent remedies aimed at areas where voting discrimination ha[d] been most flagrant," id. at 315, 86 S.Ct. 803. As a result, after building a "voluminous legislative history" during eighteen days of committee hearings and twenty-nine days of floor debate, Congress, acting pursuant to section 2 of the Fifteenth Amendment—"Congress shall have power to enforce this article by appropriate legislation," U.S. CONST amend. XV, § 2—approved the Voting Rights Act of 1965 by wide margins in both chambers. Katzenbach, 383 U.S. at 308-09, 86 S.Ct. 803; Voting Rights Act of 1965, Pub.L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-1) ("1965 Act").

Section 2 of the Voting Rights Act contains the statute's basic prohibition: "No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973. Other provisions of the statute strengthen the equitable powers of federal courts, authorize civil and criminal penalties, and outlaw poll taxes. See 42 U.S.C. §§ 1973a(c), 1973h, 1973i(d), 1973j.

Unlike those provisions, which apply nationwide and are permanent, certain sections of the Act are temporary and apply only to states and political subdivisions with particularly egregious histories of racial discrimination in voting. In such "covered" jurisdictions, section 4(a) bans the use of any test or device to deny the right to vote. As originally enacted, the statute defined "test or device" as any requirement that a prospective voter "(1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." 1965 Act § 4(c), 79 Stat. at 438-39 (codified at 42 U.S.C. § 1973b(c)).

In addition to section 4(a), covered jurisdictions are subject to section 5-the provision challenged in this case. Section 5 prohibits any and all changes in voting regulations pending review and approval by the federal government in a process known as preclearance. 42 U.S.C. §§ 1973b, 1973c. To obtain preclearance of a proposed change under section 5, covered jurisdictions may either submit the proposed change to the United States Attorney General or seek a declaratory judgment from a three-judge panel of this court. 42 U.S.C. § 1973c. Under section 5, the Attorney General or the district court may preclear the change only if it "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color." Id. If the Attorney General interposes no objection after sixty days or if the district court grants a declaratory judgment, the jurisdiction may implement the change. Absent preclearance, covered jurisdictions may not modify any existing voting qualifications, standards, practices, or procedures. Another provision applicable only in covered jurisdictions authorizes the Attorney General to appoint federal election observers. 42 U.S.C. § 1973f.

To determine which...