Nw. Austin Mun. Util. Dist. No. One v. Holder, No. 08–322.

CourtUnited States Supreme Court
Writing for the CourtChief Justice ROBERTS delivered the opinion of the Court.
Citation129 S.Ct. 2504,557 U.S. 193,174 L.Ed.2d 140
Decision Date22 June 2009
Docket NumberNo. 08–322.

557 U.S. 193
129 S.Ct.
174 L.Ed.2d 140

Eric H. HOLDER, Jr., Attorney General, et al.

No. 08–322.

Supreme Court of the United States

Argued April 29, 2009.
Decided June 22, 2009.

Gregory S. Coleman, for appellant.

Neal K. Katyal, for appellee Eric H. Holder, Jr., Attorney General.

Debo P. Adegbile, for intervenor-appellees.

Gregory S. Coleman, Counsel of Record, Christian J. Ward, Ryan P. Bates, James E. Zucker, Project on Fair Representation, Yetter, Warden & Coleman, L.L.P., Austin, Texas, for Appellant.

Jon M. Greenbaum, Robert A. Kengle, Marcia Johnson–Blanco, Mark A. Posner, Lawyers Committee for Civil Rights Under Law, Washington, D.C., Counsel for Intervenor–Appellees Texas State Conference of NAACP Branches and Austin Branch of the NAACP, Laughlin McDonald, American Civil Liberties Union, Atlanta, GA, for Intervenor–Appellee Nathaniel Lesane, Seth P. Waxman, Paul R.Q. Wolfson, Counsel of Record, Jonathan E. Nuechterlein, Ariel B. Waldman, Rebecca G. Deutsch, Micah S. Myers, Joshua M. Salzman, Nathan A. Bruggeman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for Intervenor–Appellees Texas State Conference of NAACP Branches and Austin Branch of the NAACP, Steven R. Shapiro, American Civil Liberties Union, New York, NY, Michael Kator, Kator, Parks & Weiser, P.L.L.C., Washington, D.C., Jeremy Wright, Kator, Parks & Weiser, P.L.L.C., Austin, TX, Lisa Graybill, Legal Director, ACLU Foundation of Texas, Austin, TX, Arthur B. Spitzer, ACLU of the National Capital Area, Washington, D.C., for Intervenor–Appellee Nathaniel Lesane, Angela Ciccolo, Anson Asaka, National Association for the Advancement of Colored People, Inc., NAACP National Office, Baltimore, MD, for Intervenor–Appellees Texas State Conference of NAACP Branches and Austin Branch of the NAACP.

Renea Hicks, Law Office of Max Renea Hicks, Austin, Texas, for Appellee Travis County.

John Payton, Director–Counsel, Jacqueline A. Berrien, Counsel of Record, Debo P. Adegbile, Ryan P. Haygood, Jenigh J. Garrett, Danielle Y. Conley, NAACP Legal Defense and Educational Fund, Inc., New York, NY, Kristen M. Clarke, Joshua Civin, NAACP Legal Defense and Educational Fund, Inc., Washington, D.C., Samuel Spital, Holland & Knight, New York, NY, for Intervenors–Appellees Rodney and Nicole Louis; Winthrop and Yvonne Graham; and Wendy, Jamal and Marisa Richardson.

Kathryn Kolbert, People for the American Way Foundation, Washington, D.C., for Intervenor–Appellee People for the American Way.

Nina Perales, Iván Espinoza–Madrigal, Mexican American Legal Defense & Educational Fund, Inc., San Antonio, TX, for Intervenors–Appellees Lisa and David Diaz and Gabriel Diaz.

Jose Garza, George Korbel, Judith A. Sanders–Castro, Texas Rio Grande Legal Aid, Inc., San Antonio, TX, for Intervenors–Appellees Angle Garcia, Jovita Casares and Ofelia Zapata.

129 S.Ct. 2508

Edwin S. Kneedler, Acting Solicitor General, Counsel of Record, Loretta King, Acting Assistant Attorney General, Neal Kumar Katyal, Deputy Solicitor General, Douglas Hallward–Driemeier, Assistant to the Solicitor General, Steven H. Rosenbaum, Diana K. Flynn, Sarah E. Harrington, T. Christian Herren, Jr., Attorneys, Department of Justice, Washington, D.C., for Federal Appellee.

Gregory G. Garre, Solicitor General, Counsel of Record, Grace Chung Becker, Acting Assistant Attorney General, Daryl Joseffer, Deputy Solicitor General, Eric D. Miller, Assistant to the Solicitor General, Diana K. Flynn, Sarah E. Harrington, T. Christian Herren, Jr., Attorneys, Department of Justice, Washington, D.C., for appellants.


Chief Justice ROBERTS delivered the opinion of the Court.

557 U.S. 196

The plaintiff in this case is a small utility district raising a big question—the constitutionality of § 5 of the Voting Rights Act. The district has an elected board, and is required by § 5 to seek preclearance from federal authorities 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 in voting in the district.

557 U.S. 197

The district filed suit seeking relief from these preclearance 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 political subdivision 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.

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 seek bailout. We therefore reverse, and do not reach the constitutionality of § 5.



The Fifteenth Amendment promises that the “right of citizens of the United States to vote shall not be denied or abridged ... on account of race, color, or previous condition 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 appropriate legislation.” § 2. The first century of congressional enforcement of the Amendment, however, can only be regarded as a failure. Early enforcement Acts were inconsistently applied and repealed with the rise of Jim Crow. South Carolina v. Katzenbach, 383 U.S. 301, 310, 86 S.Ct. 803, 15 L.Ed.2d 769 (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

129 S.Ct. 2509

creative in “contriving new rules” to continue violating the Fifteenth Amendment

557 U.S. 198

“in the face of adverse federal court decrees.” Katzenbach, supra, at 335, 86 S.Ct. 803;Riley v. Kennedy, 553 U.S. 406, ––––, 128 S.Ct. 1970, 1976–1977, 170 L.Ed.2d 837 (2008).

Congress responded with the Voting Rights Act. Section 2 of the Act operates nationwide; as it exists today, that provision forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen 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 this case.

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, 86 S.Ct. 803. 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 § 4 of the Act. Voting Rights Act of 1965, §§ 4(a)-(d), 79 Stat. 438–439. Although such tests may have been facially neutral, they were easily manipulated to keep blacks from voting. The Act also empowered federal examiners 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 suspended all changes in state election procedure until they were submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the Attorney General. Id., at 439, codified as amended at 42 U.S.C. § 1973c(a). Such preclearance is granted only if 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.” Ibid. We have interpreted the requirements of § 5 to 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, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969).

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

557 U.S. 199

than 50% voter registration or turnout in the 1964 Presidential election. § 4(b), 79 Stat. 438. Congress recognized 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, 97 S.Ct. 2428, 53 L.Ed.2d 439 (1977). It therefore “afforded such jurisdictions immediately available protection in the form of ... [a] ‘bailout’ suit.” Ibid.

To bail out under the current provision, a jurisdiction must 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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT