The Supreme Court Considers a Powerful Challenge to the Voting Rights Act
	By RODGER CITRON
	Wednesday, April 29, 2009

Today, the Supreme Court hears oral argument in Northwest Austin Municipal Utility District Number One v. Holder ("NAMUDNO"), arguably the Court's most important – and perhaps most difficult – case of the term. NAMUDNO involves a powerful challenge to Section 5 of the Voting Rights Act ("the Act") and implicates fundamental constitutional principles, pitting the Fourteenth and Fifteenth Amendments' protections of civil rights against the value of state sovereignty. Paradoxically, the very success of the Act in combating racial discrimination in voting has enabled such a strong challenge to one of its basic provisions.

(Apparently recognizing the significance of and public interest in NAMUDNO, the Court will provide same-day access to audio of the oral argument, something it hasn't done since the oral argument more than a year ago in District of Columbia v. Heller, involving the Second Amendment right to bear arms.)

In this article, I will briefly describe the legislative history of the Voting Rights Act, discuss the challenge to Section 5 asserted by the plaintiff in NAMUDNO and the lower court's rejection of that challenge, and offer a prediction about the outcome of the case before the Supreme Court. Among legal commentators, the conventional wisdom is that Justice Anthony Kennedy's vote will be decisive; I agree. As I will explain below, my view is that Justice Kennedy will vote to uphold the constitutionality of Section 5.

The Voting Rights Act of 1965 and Its Subsequent Reauthorizations

The history of the Voting Rights Act dates back to the period shortly after the Civil War, when the Fourteenth and Fifteenth Amendments were adopted. The Fifteenth Amendment specifically guarantees that the "right of citizens 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." Despite this guarantee, however, African Americans encountered substantial obstacles to voting – including literacy tests, property qualifications, and other impediments intended to thwart their right to vote – for nearly a century after the ratification of the amendment in 1870.

Eventually, in 1965, Congress responded with comprehensive legislation that generally prohibited voting discrimination. Congress also – in temporary legislation that has been reauthorized several times and continues to be the law today – subjected certain states and other governmental entities with particularly egregious histories of voting discrimination to additional scrutiny and regulation. Under Section 5 of the Act, such "covered" jurisdictions may not make any change in their voting regulations unless the proposed change is reviewed and approved (a process known as "preclearance") by the federal government. The Act also contains what is known as a "bailout" provision that allows for a covered jurisdiction to file a lawsuit if it seeks to no longer be covered; the jurisdiction will succeed if (in essence) it can show that it does not engage in voting discrimination.

The temporary legislation subjecting covered jurisdictions to preclearance requirements (while maintaining the bailout procedure) was reauthorized, with certain changes, in 1970, 1975, 1982, and 2006. Prior to each reauthorization, Congress conducted hearings and received extensive evidence on the continued existence of voting discrimination.

Shortly after Congress reauthorized Section 5 (and a number of other temporary provisions) of the Act in 2006, the plaintiff in NAMUDNO filed suit. The plaintiff – a local government entity in Texas, a covered jurisdiction under the Act – sought to be exempted from the preclearance requirements of Section 5. It also contended that Section 5 was unconstitutional because it was an "overextension" of Congress's power "to remedy past violations of the Fifteenth Amendment."

The Lower Court's Decision

The plaintiff filed its lawsuit in United States District Court in Washington, D.C. Pursuant to the Act, a three-judge panel was convened; it included two district court judges, Paul L. Friedman and Emmet G. Sullivan, and a Court of Appeals judge, David S. Tatel. Judge Tatel, a former civil rights lawyer, wrote a lengthy decision for a unanimous court rejecting the plaintiff's claims.

As a threshold matter, the court concluded that the plaintiff was not permitted to seek bailout under the Act. The court held that only covered states – such as Texas, where the plaintiff, a local utility district, is located – and political subdivisions covered under the Act may pursue bailout.

The court then addressed the plaintiff's contention that Section 5 was unconstitutional. Initially, the court confronted the issue of the standard of review to be applied in evaluating the plaintiff's challenge. One line of Supreme Court cases can be traced back to the Supreme Court's decision in South Carolina v Katzenbach, involving a challenge to the Act shortly after it was first adopted. In Katzenbach, the Supreme Court held that under the Fifteenth Amendment, a deferential "rational means" standard of review applied to challenges to the Act. The Act easily passed muster in Katzenbach and in a number of subsequent cases, including a 1999 Supreme Court decision, Lopez v. Monterey County.

The other line of Supreme Court cases is more recent and begins with City of Boerne v. Flores; in that case, the Court developed a more demanding "congruence and proportionality" test for evaluating legislation enacted pursuant to Section 5 of the Fourteenth Amendment. The congruence and proportionality standard entails more judicial scrutiny than "rational means" review, and requires more rigorous judicial review of the remedy chosen by Congress to address the constitutional harm it identified. Applying this standard, the Supreme Court has invalidated federal legislation in a number of cases since City of Boerne.

The district court in NAMUDNO concluded that the more lenient standard of review applied to the plaintiff's challenge to Section 5 of the Act – essentially because the Act was specifically authorized by the Fifteenth Amendment, which protects the right to vote. After reviewing in detail the evidence presented to Congress, the court concluded that the record before Congress in 2006 contained "extensive evidence of intentional discrimination" and supported Congress's belief that Section 5 was beneficial by deterring voting discrimination.

The court also analyzed the plaintiff's challenge to Section 5 under the congruence and proportionality standard and concluded that Section 5 was constitutional despite the more rigorous review required under that test. Although the court rejected the plaintiff's challenge, it nevertheless acknowledged the "significant progress" made by minorities in covered jurisdictions since the prior reauthorization in 1982.

The court issued its decision in September 2008, before the last presidential election. Critics of Section 5, including the plaintiff (in its submissions to the Supreme Court) have stated that the election of an African American president – along with the infirmities in the 2006 legislation reauthorizing Section 5 – demonstrates that there no longer is a need for this more intrusive provision of the Act.

Justice Kennedy's Likely Decisive Vote – and a Prediction

Under Chief Justice John Roberts, the Supreme Court has interpreted the Act narrowly in its decisions so far, as Richard Hasen, a professor at Loyola Law School, noted this week in Slate. Based upon the Court's decision in those cases and others involving the operation of the political process, it appears that at least four members of the Court – Chief Justice Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito – are sufficiently skeptical of the Act to review critically the record before Congress in 2006, and to subject Section 5 to rigorous congruence and proportionality review. The progress made under the Act likely will demonstrate for this group that Section 5 is outdated and no longer may be necessary.

Just as there are four conservative justices who are likely to take a dim view of section, it seems that the four members of the so-called liberal wing of the Court – Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer – are likely to find that Congress did its work well enough to justify their rejecting the plaintiff's challenge. The evidence cited by the lower court, together with the institutional deference due Congress on legislation intended to remedy racial discrimination, should be enough to sustain Section 5 in this group's eyes.

As is often the case, Justice Kennedy's vote is likely to be decisive. And there are at least two reasons to believe that he is more likely to vote to sustain Section 5 rather than to invalidate it as unconstitutional. First, in a decision earlier this year involving a claim brought under another section of the Voting Rights Act, Bartlett v. Strickland, Justice Kennedy wrote that:

Some commentators suggest that racially polarized voting is waning – as evidenced by, for example, the election of minority candidates where a majority of voters are white. Still racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions; and section 2 [of the Act] must be interpreted to ensure that continued progress.

That is hardly the statement of a justice prepared to invalidate a significant – albeit different – provision of the Act.

Second, invalidating Section 5 would be politically controversial, and could be interpreted as a repudiation of the historical struggle for civil rights that culminated in (among other things) the Voting Rights Act of 1965. Among the Justices, Kennedy seems particularly attuned to the political consequences of the Court's decisions, and he would seem inclined to avoid the controversy attendant to a decision that would strike down Section 5 as unconstitutional.

Although Justice Kennedy seems unlikely to vote to invalidate Section 5, it is worth recalling that his decision in Bartlett narrowed the application of the Act and noting that he almost certainly is sympathetic to the plaintiff's claims in NAMUDNO. The challenge for Kennedy, as Professor Hasen suggested, will be to narrow the reach of Section 5. However, that objective is likely to be elusive in a case in which the principal legal issue is a facial challenge to the law – that is, a challenge to the law under essentially any and all circumstances rather than one based upon an application of the law to a particular set of facts.

Rodger Citron is an Assistant Professor of Law at Touro Law Center on Long IslandI and a FindLaw guest columnist..