OPINION OF THOMAS, J.
NORTHWEST AUSTIN MUNICIPAL UTIL. DIST.NO. ONE V. HOLDER
557 U. S. ____ (2009)
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 eligibility—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 question addressed 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 on account 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
in No. 06–1384 (DDC), pp. 490–492, Record, Doc. 100; Attorney
General’s Statement of Uncontested Material Facts in No. 06–1384
(DDC), ¶¶19, 59, Record, Doc. 98. Given its resolution of the
statutory question, the Court has thus correctly remanded the case
for resolution of appellant’s factual 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, the avoidance
canon was not a doctrine under which courts read statutes to avoid
mere constitutional doubts. Instead, it commanded courts, when
faced with two plausible constructions of a statute—one
constitutional and the other unconstitutional—to choose the
constitutional reading.”
Clark v.
Martinez,
543 U. S. 371,
395 (2005) (Thomas, J., dissenting). To the extent that
constitutional avoidance is a worthwhile tool of statutory
construction, it is because it allows a court to dispose of an
entire case on grounds that do not require the court to pass on a
statute’s constitutionality. 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 ground upon 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 case will not have been entirely disposed of on a
nonconstitutional ground. Cf. Tr. of Oral Arg. 14 (“[I]f the Court
were to give us bailout … the Court might choose on its own not 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 political subdivision 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 … 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 fully
complied with §5; and (E) “the Attorney General has not interposed
any objection (that has not been overturned by a final judgment of
a court) and no declaratory judgment has been denied under [§5].”
§§1973b(a)(1)(A)–(E). The jurisdiction also has the burden of
presenting “evidence of minority participation, including evidence
of the levels of minority group registration and voting, changes in
such levels over time, and disparities between minority-group and
non-minority-group participation.” §1973b(a)(2).
These extensive requirements may be difficult
to satisfy, see Brief for Georgia Governor Sonny Purdue as
Amicus Curiae 20–26, but at least they are objective. The
covered jurisdiction seeking bailout must also meet subjective
criteria: it must “(i) have eliminated voting procedures and
methods of election which inhibit or dilute equal access to the
electoral process; (ii) have engaged in constructive efforts to
eliminate intimidation and harassment of persons exercising rights
protected [under the Act]; and (iii) have engaged in other
constructive efforts, such as expanded opportunity for convenient
registration and voting for every person of voting age and the
appointment of minority persons as election officials throughout
the jurisdiction and at all stages of the election and registration
process.” §§1973b(a)(1)(F)(i)–(iii).
As a result, a covered jurisdiction meeting
each of the objective conditions could nonetheless be denied
bailout because 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 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 12,000 covered political subdivisions … have successfully
bailed out of the Act.”
Ante, at 16;[
Footnote 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 termination of coverage have
been made so restrictive that bailout will continue to be
impossible for most jurisdictions”). Accordingly, bailout
eligibility does not eliminate the issue of §5’s
constitutionality.
II
The Court quite properly alerts
Congress that §5 tests the outer boundaries of its Fifteenth
Amendment enforcement authority and may not be constitutional. See
ante, at 7–9. And, although I respect the Court’s careful
approach to this weighty issue, I nevertheless believe it is
necessary to definitively resolve that important question. For the
reasons set forth below, I conclude that the lack of current
evidence of intentional discrimination with respect to voting
renders §5 unconstitutional. The provision can no longer be
justified as an appropriate mechanism for enforcement of the
Fifteenth Amendment.
A
“The government of the United
States is one of delegated powers alone. Its authority is defined
and limited by the Constitution. All powers not granted to it by
that instrument are reserved to the States or the people.”
United States v.
Cruikshank,
92 U. S. 542, 551 (1876);
see also
U. S. Term Limits, Inc. v.
Thornton,
514 U. S. 779,
848 (1995) (Thomas, J., dissenting). In the specific area of voting
rights, this Court has consistently recognized that the
Constitution gives the States primary authority over the
structuring of electoral systems. See,
e.g.,
White v.
Weiser,
412 U. S. 783, 795
(1973);
Burns v.
Richardson,
384 U. S. 73, 84–85
(1966). “No function is more essential to the separate and
independent existence of the States and their governments than the
power to determine within the limits of the Constitution the
qualifications of their own voters for state, county, and municipal
offices and the nature of their own machinery for filling local
public offices.”
Oregon v.
Mitchell,
400 U. S. 112, 125
(1970) (opinion of Black, J.).
State autonomy with respect to
the machinery of self-government defines the States as sovereign
entities rather than mere provincial outposts subject to every
dictate of a central governing authority. See 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”); see also
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 not absolute under the Constitution. The Fifteenth
Amendment guarantees that the “right of citizens of the United
States to vote shall not be denied or abridged by the United States
or by any State on account of race, color, or previous condition of
servitude,” §1, and it grants Congress the authority to “enforce”
these rights “by appropriate legislation,” §2. The Fifteenth
Amendment thus renders unconstitutional any federal or state law
that would limit a citizen’s access to the ballot on one of the
three bases enumerated in the Amendment. See
Mobile v.
Bolden,
446 U. S. 55, 65 (1980) (plurality
opinion) (the Fifteenth Amendment guards against “purposefully
discriminatory denial or abridgment by government of the freedom to
vote”). Nonetheless, because States still retain sovereign
authority over their election systems, any measure enacted in
furtherance of the Fifteenth Amendment must be closely examined to
ensure that its encroachment on state authority in this area is
limited to the appropriate enforcement of this ban on
discrimination.
There is certainly no question that the VRA
initially “was passed pursuant to Congress’ authority under the
Fifteenth Amendment.”
Lopez v.
Monterey County,
525 U. S. 266,
282 (1999). For example, §§2 and 4(a) seek to implement the
Fifteenth Amendment’s substantive command by creating a private
cause of action to enforce §1 of the Fifteenth Amendment, see
§1973(a), and by banning discriminatory 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 deny certain 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: to prevent covered jurisdictions from
circumventing the direct 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 different
evils” 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 been possible because each new law remained
in effect until the Justice Department or private plaintiffs were
able to sustain the burden of proving that the new law, too, was
discriminatory.”
Beer v.
United States,
425 U. S. 130, 140
(1976) (internal quotation marks omitted).
The rebellion against the enfranchisement of
blacks in the wake of ratification of the Fifteenth Amendment
illustrated the need for increased federal intervention to protect
the right to vote. Almost immediately following Reconstruction,
blacks attempting to vote were met with coordinated intimidation
and violence. See,
e.g., L. McDonald, A Voting Rights
Odyssey: Black Enfranchisement in Georgia 34 (2003) (“By 1872, the
legislative and executive branches of state government … were once
again firmly in the control of white Democrats, who resorted to a
variety of tactics, including fraud, intimidation, and violence, to
take away the vote from blacks, despite ratification of the
Fifteenth Amendment in 1870 …”).[
Footnote 2] A soon-to-be victorious mayoral candidate in
Wilmington, North Carolina, for example, urged white voters in an
1898 election-eve speech: “Go to the polls tomorrow and if you find
the negro out voting, tell him to leave the polls, and if he
refuses kill him; shoot him down in his tracks.” S. Tolnay & E.
Beck, A Festival of Violence: An Analysis of Southern Lynchings,
1882–1930, p. 67 (1995).
This campaign of violence eventually was
supplemented, and in part replaced, by more subtle methods
engineered to deny blacks the right to vote. See
South
Carolina v.
Katzenbach,
383 U. S. 301, 310–312
(1966). Literacy tests were particularly effective: “as of 1890 in
… States [with literacy tests], more than two-thirds of the adult
Negroes were illiterate while less than one-quarter of the adult
whites were unable to read or write,”
id., at 311, because
“[p]rior to the Civil War, most of the slave States made it a crime
to teach Negroes how to read or write,” see also
id., at
311, n. 10.[
Footnote 3]
Compounding the tests’ discriminatory impact on blacks, alternative
voter qualification laws such as “grandfather clauses, property
qualifications, [and] ‘good character’ tests” were enacted to
protect those whites who were unable to pass the literacy tests.
Id., at 311; see also
Lopez,
supra, at
297 (Thomas, J., dissenting) (“Literacy tests were unfairly
administered; whites were given easy questions, and blacks were
given more difficult questions, such as the number of bubbles in a
soap bar, the news contained in a copy of the
Peking
Daily, the meaning of obscure passages in state constitutions,
and the definition of terms such as
habeas corpus”
(internal quotation marks 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
right to vote illusory for blacks in the Jim Crow South. Despite
the Civil War’s bloody purchase of the Fifteenth Amendment, “the
reality remained far from the promise.”
Rice v.
Cayetano,
528 U. S. 495, 512–513
(2000); see also R. Wardlaw, Negro Suffrage in Georgia, 1867–1930,
p. 34 (Phelps-Stokes Fellowship Studies, No. 11, 1932)
(“Southern States were setting out to accomplish an effective
nullification of the war measures of Congress”).
Thus, by 1965, Congress had every reason to
conclude that States with a history of disenfranchising voters
based on race would continue to do all they could to evade the
constitutional ban on voting discrimination. By that time,
race-based voting discrimination had “infected the electoral
process in parts of our country for nearly a century.”
Katzenbach, 383 U. S., at 308. Moreover, the massive scale
of disenfranchisement efforts made case-by-case enforcement of the
Fifteenth Amendment impossible, if not Sisyphean. See
id.,
at 309 (“Congress concluded that the unsuccessful remedies which it
had prescribed in the past would have to be replaced by sterner and
more elaborate measures in order to satisfy the clear commands of
the Fifteenth Amendment
”);
Rice,
supra,
at 513 (“Progress was slow, particularly when litigation had to
proceed case by case, district by district, sometimes voter by
voter”); Thernstrom, Section 5 of the Voting Rights Act: By Now, a
Murky Mess, 5 Geo. J. L. & Pub. Pol’y 41, 44 (2007) (“In
1965, it was perfectly reasonable to believe that
any move
affecting black enfranchisement in the Deep South was deeply
suspect. And only such a punitive measure [as §5] had any hope of
forcing the South to let blacks vote” (emphasis in original)).
It was against this backdrop of “historical
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
perpetuated in 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 reliable
evidence 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 was appropriate to radically
interfere with control over local elections 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 to impose the new remedies” on the jurisdictions
covered under §4(b) “at least in the absence of proof that they
ha[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
circumstances” present in the targeted jurisdictions at that
particular time.
Id., at 334–335. In reaching its
decision, the Court thus refused to simply accept Congress’
representation that the extreme measure was necessary to enforce
the Fifteenth Amendment; rather, it closely reviewed the record
compiled by Congress to ensure that §5 was
“ ‘appropriate’ ” antievasion legislation. See
id.
, at 308. In so doing, the Court highlighted
evidence showing that black voter registration rates ran
approximately 50 percentage points lower than white voter
registration in several States. See
id., at 313. It also
noted that the registration rate for blacks in Alabama “rose only
from 14.2% to 19.4% between 1958 and 1964; in Louisiana it barely
inched ahead from 31.7% to 31.8% between 1956 and 1965; and in
Mississippi it increased only from 4.4% to 6.4% between 1954 and
1964.”
Ibid. The Court further observed that voter turnout
levels in covered jurisdictions had been at least 12% below the
national average in the 1964 Presidential election. See
id., at 329–330.
The statistical evidence confirmed Congress’
judgment that “the extraordinary stratagem of contriving new rules
of various kinds for the sole purpose of perpetuating voting
discrimination in the face of adverse federal court decrees” was
working and could not be defeated through case-by-case enforcement
of the Fifteenth Amendment.
Id., at 335. This record also
clearly supported Congress’ predictive judgment that such “States
might try similar maneuvers in the future in order to evade the
remedies for voting discrimination contained in the Act itself.”
Ibid. These stark statistics—in conjunction with the
unrelenting use of discriminatory tests and practices that denied
blacks the right to vote—constituted sufficient proof of “actual
voting discrimination” to uphold the preclearance requirement
imposed by §5 on the covered jurisdictions as an appropriate
exercise of congressional power under the Fifteenth Amendment.
Id., at 330. It was only “[u]nder the compulsion of these
unique circumstances [that] Congress responded in a permissibly
decisive manner.”
Id., at 335.
B
Several important principles
emerge from
Katzenbach and the decisions that followed it.
First, §5 prohibits more state voting practices than those
necessarily encompassed by the explicit prohibition on intentional
discrimination found in the text of the Fifteenth Amendment. The
explicit command of the Fifteenth Amendment is a prohibition on
state practices that in fact deny individuals the right to vote “on
account of” 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 the Amendment’s text.”
Kimel v.
Florida Bd. of Regents,
528 U. S. 62, 81 (2000)
(emphasis added).
Second, because it sweeps more
broadly than the substantive command of the Fifteenth Amendment, §5
pushes the outer boundaries of Congress’ Fifteenth Amendment
enforcement authority. See
Miller v.
Johnson,
515 U. S. 900,
926 (1995) (detailing the “federalism costs exacted by §5”);
Presley v.
Etowah County Comm’n,
502 U. S. 491, 500–501
(1992) (describing §5 as “an extraordinary departure from the
traditional course of relations between the States and the Federal
Government”);
City of Rome v.
United States,
446 U. S. 156,
200 (1980) (Powell, J., dissenting) (“The preclearance requirement
both intrudes on the prerogatives of state and local governments
and abridges the voting rights of all citizens in States covered
under the Act”);
Lopez, 525 U. S., at 293 (Thomas, J.,
dissenting) (“Section 5 is a unique requirement that exacts
significant federalism costs”);
ante, at 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 has described it
as a ‘substantial departure … from ordinary concepts of our federal
system’; its encroachment on state sovereignty is significant and
undeniable.”
United States v.
Sheffield Bd. of
Comm’rs,
435 U.
S. 110, 141 (1978) (Stevens, J., dissenting) (footnote
omitted). This “encroachment is especially troubling because it
destroys local control of the means of self-government, one of the
central values of our polity.”
City of Rome,
supra, at 201 (Powell, J., dissenting). More than 40 years
after its enactment, this intrusion has become increasingly
difficult to justify.
Third, to accommodate the tension between the
constitutional imperatives of the Fifteenth and Tenth Amendments—a
balance between allowing the Federal Government to patrol state
voting practices for discrimination and preserving the States’
significant interest in self-determination—the constitutionality of
§5 has always depended on the proven existence of intentional
discrimination so extensive that elimination of it through
case-by-case enforcement would be impossible. See
Katzenbach, 383 U. S., at 308 (“Before enacting the
measure, Congress explored with great care the problem of racial
discrimination in voting”);
Katzenbach v.
Morgan,
384 U. S. 641,
667 (1966) (Harlan, J., dissenting) (“Congress made a detailed
investigation of various state practices that had been used to
deprive Negroes of the franchise”). “There can be no remedy without
a wrong. Essential to our holdings in [
South Carolina v.]
Katzenbach and
City of Rome was our conclusion
that Congress was remedying the effects of prior
intentional racial discrimination. In both cases, we
required Congress to have some evidence that the jurisdiction
burdened with preclearance obligations had actually engaged in such
intentional discrimination.”
Lopez,
supra, at
294–295 (Thomas, J., dissenting) (emphasis in original).
The Court has never deviated from this
understanding. We have explained that prophylactic legislation
designed to enforce the Reconstruction Amendments must “identify
conduct transgressing the … substantive provisions” it seeks to
enforce and be tailored “to remedying or preventing 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 by
justifying 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 to withstand renewed constitutional
scrutiny, there must be a demonstrated connection between the
“remedial measures” chosen and the “evil presented” in the record
made by 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 the Court to previously uphold §5 as
enforcing the Fifteenth Amendment no longer exists. Covered
jurisdictions are not now engaged in a systematic campaign to deny
black citizens access to the ballot through intimidation and
violence. And the days of “grandfather clauses, property
qualifications, ‘good character’ tests, and the requirement that
registrants ‘understand’ or ‘interpret’ certain matter,”
Katzenbach, 383 U. S., at 311, are gone. There is thus
currently no concerted effort in these jurisdictions to engage in
the “unremitting and ingenious defiance of the Constitution,”
id., at 309, that served as the constitutional basis for
upholding the “uncommon exercise of congressional power” embodied
in §5,
id., at 334.
The lack of sufficient evidence
that the covered jurisdictions currently engage in the type of
discrimination that underlay the enactment of §5 undermines any
basis for retaining it. Punishment for long past sins is not a
legitimate basis for imposing a forward-looking preventative
measure that has already served its purpose. Those supporting §5’s
reenactment argue that without it these jurisdictions would return
to the racially discriminatory practices of 30 and 40 years ago.
But there is no evidence that public officials stand ready, if
given the chance, to again engage in concerted acts of violence,
terror, and subterfuge in order to keep minorities from voting.
Without such evidence, the charge can only be premised on outdated
assumptions about racial attitudes in the covered jurisdictions.
Admitting that a prophylactic law as broad as §5 is no longer
constitutionally justified based on current evidence of
discrimination is not a sign of defeat. It is an acknowledgment of
victory.
The current statistical evidence confirms that
the emergency that prompted the enactment of §5 has long since
passed. By 2006, the voter registration rates for blacks in
Alabama, Louisiana, and Mississippi had jumped to 71.8%, 66.9%, and
72.2%, respectively. See App. to Brief for Southeastern Legal
Foundation as
Amicus Curiae 6a–7a (hereinafter SLF Brief).
Therefore, in contrast to the
Katzenbach Court’s finding
that the “registration of voting-age whites ran roughly 50
percentage points or more ahead of Negro registration” in these
States in 1964, see 383 U. S., at 313, since that time this
disparity has nearly vanished. In 2006, the disparity was only 3
percentage points in Alabama, 8 percentage points in Louisiana, and
in Mississippi, black voter registration actually exceeded white
voter registration by 1.5 percentage points. See App. to SLF Brief
6a–7a. In addition, blacks in these three covered States also have
higher registration numbers than the registration rate for whites
in noncovered states. See E. Blum & L. Campbell, Assessment of
Voting Rights 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 the 2004 election was “identical to the
national average”; and in “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 registration and voter
turnout that were in place prior to the VRA have been eliminated”).
Instead of relying on the kind of evidence that the
Katzenbach Court had found so persuasive, Congress 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 voting
within the covered jurisdictions. But racially polarized voting is
not evidence of unconstitutional discrimination, see
Bolden,
446 U. S. 55, is not state action, see
James v.
Bowman,
190 U. S. 127, 136
(1903), and is not a problem unique to the South, see Katz,
Aisenbrey, Baldwin, Cheuse, & Weisbrodt, Documenting
Discrimination in Voting: Judicial Findings Under Section 2 of The
Voting Rights Act Since 1982, 39 U. Mich. J. L. Reform 643,
665 (2006). The other evidence relied on by Congress, such as §5
enforcement actions, §§2 and 4 lawsuits, and federal examiner and
observer coverage, also bears no resemblance to the record
initially supporting §5, and is plainly insufficient to sustain
such an extraordinary remedy. See SLF Brief 18–35. In sum, evidence
of “second generation barriers” cannot compare to the prevalent and
pervasive voting discrimination of the 1960’s.
This is not to say that voter discrimination
is extinct. Indeed, the District Court singled out a handful of
examples of allegedly discriminatory voting practices from the
record made by Congress. See,
e.g.,
Northwest Austin
Municipal Util. Dist. No. One v.
Mukasey, 573 F.
Supp. 2d. 221, 252–254, 256–262 (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 needed to neutralize a coordinated and
unrelenting campaign to deny an entire race access to the ballot.
See
City of Boerne, 521 U. S., at 526 (concluding that
Katzenbach confronted a “widespread and persisting
deprivation of constitutional rights resulting from this country’s
history of racial discrimination”). Perfect compliance with the
Fifteenth Amendment’s substantive command is not now—nor has it
ever been—the yardstick for determining whether Congress has the
power to employ broad prophylactic legislation to enforce that
Amendment. The burden remains with Congress to prove that the
extreme circumstances warranting §5’s enactment persist today. A
record of scattered 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 acknowledgment of §5’s
unconstitutionality represents a fulfillment of the Fifteenth
Amendment’s promise of full enfranchisement and honors the success
achieved by the VRA.
Footnote
1
All 17 covered jurisdictions
that have been awarded bailout are from Virginia, see
ante, at 15–16, and all 17 were represented by the same
attorney—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.
Footnote
2
See 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 all of
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
on us again this black and damnable machine miscalled a government
of our city” (publishing resolutions passed by the Young White
Men’s League of Jackson)).
Footnote
3
Although 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 Negroes started 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
at war with those citizens who are Negroes and who are determined
to exercise their rights under the Constitution of the United
States”).
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