Northwest Austin Municipal Utility District Number One v. Holder , 129 S. Ct. 2504 ( 2009 )

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being 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 been
prepared 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 of
1965 (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, not
to an entity like the district that does not register its own voters. It
also concluded that a 2006 amendment extending §5 for 25 years was
constitutional.
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 state
and 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 limited
Constitution 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 is
eligible 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 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 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 broader
reading.
This Court has already established that §14(c)(2)’s definition does
not 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” is
counterintuitive 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 and
dissenting in part.
Cite as: 557 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that 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 the
Court.
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 in
voting 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 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.
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 seek
bailout. We therefore reverse, and do not reach the consti
tutionality of §5.
I
A
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 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 appropriate
legislation.” §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 continue
violating the Fifteenth Amendment “in the face of adverse
federal 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, 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
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 been
facially neutral, they were easily manipulated to keep
blacks 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 Federal
District 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 change
neither “has the purpose nor will have the effect of deny
ing 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 (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 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 for the previ
ous 10 years it has not used any forbidden voting test, has
not 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 efforts
to eliminate intimidation and harassment” of voters, and
similar measures. §§1973b(a)(1)(A)–(F). The Attorney
General 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 every
jurisdiction in its territory has complied with all of these
requirements. §1973b(a)(3). The District Court also
retains continuing jurisdiction over a successful bailout
suit 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 were
temporary provisions. They were expected to be in effect
for only five years. §4(a), 79 Stat. 438. We upheld the
temporary Voting Rights Act of 1965 as an appropriate
exercise of congressional power in Katzenbach, explaining
that “[t]he constitutional propriety of the Voting Rights
Act of 1965 must be judged with reference to the historical
experience which it reflects.” 383 U. S., at 308. We con
cluded that the problems Congress faced when it passed
the 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 coverage
formula remained the same, based on the use of voting
eligibility tests and the rate of registration and turnout
among all voters, but the pertinent dates for assessing
these criteria moved from 1964 to include 1968 and 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, in
2006, Congress extended §5 for yet another 25 years.
Fannie Lou Hamer, Rosa Parks, and Coretta Scott King
Voting Rights Act Reauthorization and Amendments Act
of 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 Number
One 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 of
four 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 bailout
provisions and arguing in the alternative that, if inter
preted to render the district ineligible for bailout, §5 was
unconstitutional. 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 includes
only “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 the
district’s constitutional challenge, the court concluded that
the 25-year extension of §5 was constitutional both be
cause “Congress . . . rationally concluded that extending
[§]5 was necessary to protect minorities from continued
racial discrimination in voting” and because “the 2006
Amendment 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 at
higher rates than whites. Id., at 12–13. Similar dramatic
improvements have occurred for other racial minorities.
Id., at 18–20. “[M]any of the first generation barriers to
minority voter registration and voter turnout that were in
place prior to the [Voting Rights Act] have been elimi
nated.” Id., at 12; Bartlett v. Strickland, 556 U.S. 1, ___
(2009) (slip op., at 5) (plurality opinion) (“Passage of the
Voting Rights Act of 1965 was an important step in the
struggle to end discriminatory treatment of minorities
who seek to exercise one of the most fundamental rights of
our citizens: the right to vote”).
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 Fifteenth
Amendment by suspending all changes to state election
law—however innocuous—until they have been precleared
by federal authorities in Washington, D. C. The 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 Rome
have unquestionably improved. Things have changed in
the South. Voter turnout and registration rates now
approach parity. Blatantly discriminatory evasions of
federal decrees are rare. And minority candidates hold
office at unprecedented levels. See generally H. R. Rep.
No. 109–478, at 12–18.
These improvements are no doubt due in significant
part to the Voting Rights Act itself, and stand as a 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 and
must be justified by current needs.
The Act also differentiates between the States, despite
our historic tradition that all the States enjoy “equal
sovereignty.” United States v. Louisiana, 363 U.S. 1, 16
(1960) (citing Lessee of Pollard v. Hagan, 3 How. 212, 223
(1845)); see also Texas v. White, 7 Wall. 700, 725–726
(1869). Distinctions can be justified in some cases. “The
doctrine of the equality of States . . . does not bar . . .
remedies for local evils which have subsequently ap
peared.” Katzenbach, supra, at 328–329 (emphasis
added). But a departure from the fundamental principle
of equal sovereignty requires a showing that a statute’s
disparate geographic coverage is sufficiently related to the
problem that it targets.
These federalism concerns are underscored by the ar
gument that the preclearance requirements in one State
would be unconstitutional in another. See Georgia v.
Ashcroft, 539 U.S. 461, 491–492 (2003) (KENNEDY, J.,
concurring) (“Race cannot be the predominant factor in
redistricting under our decision in Miller v. Johnson, 515
U.S. 900 (1995). Yet considerations of race that would
doom a redistricting plan under the Fourteenth Amend
ment or §2 seem to be what save it under §5”). Additional
constitutional concerns are raised in saying that this
tension 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 considerable
evidence 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 §5
than it is nationwide. E. Blum & L. Campbell, Assess
ment of Voting Rights Progress in Jurisdictions Covered
Under 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 the
record 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., 2d
Sess., 10 (2006) (statement of Richard H. Pildes); see also
Persily, The Promise and Pitfalls of the New Voting Rights
Act, 117 Yale L. J. 174, 208 (2007) (“The most one can say
in 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 in
deciding 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 or
remedied and the means adopted to that end,’ ” Brief for
Appellant 31, quoting City of Boerne v. Flores, 521 U.S.
507, 520 (1997); the Federal Government asserts that it is
enough that the legislation be a “ ‘rational means to effec
tuate the constitutional prohibition,’ ” Brief for Federal
Appellee 6, quoting Katzenbach, supra, at 324. That
question has been extensively briefed in this case, but we
need not resolve it. The Act’s preclearance requirements
and its coverage formula raise serious constitutional 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 gravest
and most delicate duty that this Court is called on to
perform.” 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 United
States.” Rostker v. Goldberg, 453 U.S. 57, 64 (1981). The
Fifteenth Amendment empowers “Congress,” not the
Court, to determine in the first instance what legislation
is needed to enforce it. Congress amassed a sizable record
in support of its decision to extend the preclearance re
quirements, a record the District Court determined “docu
ment[ed] contemporary racial discrimination in covered
states.” 573 F. Supp. 2d, at 265. The District Court also
found that the record “demonstrat[ed] that section 5 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 the
case,” 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 (opinion
concurring 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]he
Court should reverse the judgment of the district court
and 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 of
government” relating to local utilities and natural re
sources. Tex. Const., Art. XVI, §59(b); Tex. Water Code
Ann. §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 NORTHWEST AUSTIN MUNICIPAL UTIL. DIST.
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 and
our 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 concerns
compel a broader reading of the bailout provision.
Importantly, we do not write on a blank slate. Our
decisions have already established that the statutory
definition 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
subdivision” enacts or administers a new voting practice.
Yet in Sheffield Bd. of Comm’rs, 435 U.S. 110, we rejected
the argument by a Texas 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 city
did 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 that
the “definition was intended to operate only for purposes
of 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 the
jurisdictions 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 statutory
definition the next Term in Dougherty County Bd. of Ed. v.
White, 439 U.S. 32 (1978). There, a school board argued
that because “it d[id] not meet the definition” of political
subdivision in §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 a
State has been designated for coverage, §14(c)(2)’s
definition 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 to
every 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 “any
State or political subdivision,” 42 U.S. C. §1973(a). See
Brief for Intervenor-Appellee Texas State Conference of
NAACP 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 this
definition [in §14(c)(2)] limits the meaning of the phrase
‘State or political subdivision’ only when it appears in
certain parts of the Act, and that it does not confine the
phrase as used elsewhere in the Act”). In light of our
holdings that the statutory definition does not constrict
the scope of preclearance required by §5, the district ar
14 NORTHWEST AUSTIN MUNICIPAL UTIL. DIST.
NO. ONE v. HOLDER
Opinion of the Court
gues, it only stands to reason that the definition should
not constrict the availability of bailout from those pre
clearance requirements either.
The Government responds that any such argument is
foreclosed by our interpretation of the statute in City of
Rome, 446 U.S. 156. There, it argues, we made clear that
the discussion of political subdivisions in Sheffield was
dictum, and “specifically held that a ‘city is not a “political
subdivision” for purposes of §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 of
its statutory holding did not survive later changes in the
law. In City of Rome we rejected the city’s attempt to bail
out from coverage under §5, concluding that “political
units 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 than
because of separate coverage determinations, could not
separately bail out. As JUSTICE STEVENS put it, “[t]he
political subdivisions of a covered State” were “not entitled
to 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 part
of an overhaul of the bailout provision, Congress amended
the Voting Rights Act to expressly provide that bailout
was also available to “political subdivisions” in a covered
State, “though [coverage] determinations were not made
with respect to such subdivision as a separate unit.”
Voting Rights Act Amendments of 1982, 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 covered
because 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 applicable
to the Voting Rights Act—if anything, that logic compels
the opposite conclusion.
Bailout and preclearance under §5 are now governed by a
principle of symmetry. “Given the Court’s decision in Shef
field that all political units in a covered State are to be
treated for §5 purposes as though they were ‘political sub
divisions’ of that State, it follows that they should also be
treated 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 our
decision 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 there
has been much confusion over why Sheffield held the city
in 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]his
Court 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 so
long as Texas is covered, then the same must be true of all
other subdivisions of the State, including counties. That
16 NORTHWEST AUSTIN MUNICIPAL UTIL. DIST.
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 restriction
the 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 the
Act. App. to Brief for Jurisdictions That Have Bailed Out
as Amici Curiae 3; Dept. of Commerce, Bureau of Census,
2002 Census of Governments, Vol. 1, No. 1, pp. 1, 22–60.
It is unlikely that Congress intended the provision to have
such limited effect. See United States v. Hayes, 555 U.S.
___, ____ (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 the
country 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 the
case is remanded for further proceedings consistent with
this 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 ap­
pellant 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 unconstitu­
tional. Because the Court’s statutory decision does not
provide appellant with full relief, I conclude that it is
inappropriate to apply the constitutional avoidance doc­
trine in this case. I would therefore decide the constitu­
tional 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 eligi­
2 NORTHWEST AUSTIN MUNICIPAL UTIL. DIST.
NO. ONE v. HOLDER
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 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 “po­
litical subdivision” to submit substantial evidence indicat­
ing 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 appel­
lant 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 enti­
tlement 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; Attor­
ney 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. In­
stead, it commanded courts, when faced with two plausible
constructions of a statute—one constitutional and the
other unconstitutional—to choose the constitutional read­
Cite 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 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 contro­
versy.” 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 nonconstitu­
tional 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 unavail­
able 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 . . .
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 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 per­
sons exercising rights protected [under the Act]; and (iii)
have engaged in other constructive efforts, such as ex­
panded opportunity for convenient registration and voting
for every person of voting age and the appointment of
minority persons as election officials throughout the juris­
diction 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
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 12,000
covered 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 Analy­
sis 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”). Accord­
ingly, 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 en­
forcement 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 dele­
gated powers alone. Its authority is defined and limited
——————
1 All17 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 Depart­
ment 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 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 re­
served 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 quota­
tion marks omitted).
To be sure, state authority over local elections is not
absolute under the Constitution. The Fifteenth Amend­
ment 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 Con­
Cite as: 557 U. S. ____ (2009) 7
Opinion of THOMAS, J.
gress the authority to “enforce” these rights “by appropri­
ate legislation,” §2. The Fifteenth Amendment thus ren­
ders 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 dis­
criminatory denial or abridgment by government of the
freedom to vote”). Nonetheless, because States still retain
sovereign authority over their election systems, any meas­
ure 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 com­
mand 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 Con­
gress’ 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:
8 NORTHWEST AUSTIN MUNICIPAL UTIL. DIST.
NO. ONE v. HOLDER
Opinion of THOMAS, J.
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 illus­
trated the need for increased federal intervention to pro­
tect the right to vote. Almost immediately following Re­
construction, blacks attempting to vote were met with
coordinated intimidation and violence. See, e.g., L.
McDonald, A Voting Rights Odyssey: Black Enfranchise­
ment 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 re­
sorted to a variety of tactics, including fraud, intimidation,
and violence, to take away the vote from blacks, despite
ratification of the Fifteenth Amendment in 1870 . . .”).2 A
——————
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
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 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. 10.3 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
——————
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)).
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 bom­
barded 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”).
10 NORTHWEST AUSTIN MUNICIPAL UTIL. DIST.
NO. ONE v. HOLDER
Opinion of THOMAS, J.
also Lopez, supra, at 297 (THOMAS, J., dissenting) (“Liter­
acy tests were unfairly administered; whites were given
easy questions, and blacks were given more difficult ques­
tions, 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 defini­
tion of terms such as habeas corpus” (internal quotation
marks omitted)).
The Court had declared many of these “tests and de­
vices” unconstitutional, see Katzenbach, supra, at 311–
312, but case-by-case eradication was woefully inadequate
to ensure that the franchise extended to all citizens re­
gardless 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 Amend­
ment, “the reality remained far from the promise.” Rice v.
Cayetano, 528 U.S. 495, 512–513 (2000); see also R. Ward­
law, Negro Suffrage in Georgia, 1867–1930, p. 34 (Phelps-
Stokes Fellowship Studies, No. 11, 1932) (“Southern
States were setting out to accomplish an effective nullifi­
cation 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 elec­
toral 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 elabo­
rate measures in order to satisfy the clear commands of
the Fifteenth Amendment”); Rice, supra, at 513 (“Progress
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Opinion of THOMAS, J.
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” (em­
phasis in original)).
It was against this backdrop of “historical experience”
that §5 was first enacted and upheld against a constitu­
tional challenge. See Katzenbach, supra, at 308. As the
Katzenbach Court explained, §5, which applied to those
States and political subdivisions that had employed dis­
criminatory 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 major­
ity 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 dis­
criminatory disenfranchisement as those were “the geo­
graphic 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 “appropri­
ate” absent the “exceptional conditions” and “unique cir­
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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’ repre­
sentation that the extreme measure was necessary to
enforce the Fifteenth Amendment; rather, it closely re­
viewed 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 vot­
ing 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 unrelent­
ing 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
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the compulsion of these unique circumstances [that] Con­
gress 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 ex­
plicit command of the Fifteenth Amendment is a prohibi­
tion on state practices that in fact deny individuals the
right to vote “on account of” race, color, or previous servi­
tude. 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 preventa­
tive, upholding it based on the view that the Reconstruc­
tion Amendments give Congress the power “both to rem­
edy 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 sub­
stantive 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 depar­
ture 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., dis­
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senting) (“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 federal­
ism 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 “en­
croachment 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 consti­
tutional imperatives of the Fifteenth and Tenth Amend­
ments—a balance between allowing the Federal Govern­
ment 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 discrimi­
nation 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 discrimina­
tion 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 jurisdic­
tion 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 prevent­
ing 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 constitu­
tional 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 meas­
ures” 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 ap­
propriate 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
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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 congres­
sional power” embodied in §5, id., at 334.
The lack of sufficient evidence that the covered jurisdic­
tions 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 legiti­
mate basis for imposing a forward-looking preventative
measure that has already served its purpose. Those sup­
porting §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. With­
out 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 cur­
rent evidence of discrimination is not a sign of defeat. It is
an acknowledgment of victory.
The current statistical evidence confirms that the emer­
gency 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 vot­
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Opinion of THOMAS, J.
ing-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 num­
bers 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 persua­
sive, 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 evi­
dence is not probative of the type of purposeful discrimina­
tion that prompted Congress to enact §5 in 1965. For
example, Congress relied upon evidence of racially polar­
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ized voting within the covered jurisdictions. But racially
polarized voting is not evidence of unconstitutional dis­
crimination, 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 Discrimina­
tion 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 rem­
edy. 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 exam­
ples 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 prophy­
lactic legislation to enforce that Amendment. The burden
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Opinion of THOMAS, J.
remains with Congress to prove that the extreme circum­
stances warranting §5’s enactment persist today. A record
of scattered infringement of the right to vote is not a con­
stitutionally 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 servi­
tude. 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, intimida­
tion, 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.