If It's Not Broken, Then Why Fix It? the U.s. Supreme Court Signals a Shift Under Section 5 of the Voting Rights Act in Northwest Austin Municipal Utility District Number One v. Holder, 129 S. Ct. 2504 (2009)

• Publication year: 2021
• Citation: Vol. 89

89 Nebraska L. Rev.420. If It's Not Broken, then Why Fix It? The U.S. Supreme Court Signals a Shift Under Section 5 of the Voting Rights Act in Northwest Austin Municipal Utility District Number One v. Holder, 129 S. Ct. 2504 (2009)

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Note*

If It's Not Broken, then Why Fix It? The U.S. Supreme Court Signals a Shift Under Section 5 of the Voting Rights Act in Northwest Austin Municipal Utility District Number One v. Holder, 129 S. Ct. 2504 (2009)

TABLE OF CONTENTS

I. Introduction.......................................... 421

II. Background........................................... 422
A.Section 5 and Congressional Fact-Finding .......... 422
1.The Voting Rights Act of 1965, 42 U.S.C. §1973 (2006) ......................................... 422
2.South Carolina v. Katzenbach, 383 U.S. 301 (1966)......................................... 424
3.City of Rome v. U.S., 466 U.S. 156 (1980)...... 424
4.City of Boerne v. Flores, 521 U.S. 507 (1997) ... 425
B.Northwest Austin Facts and Holding ............... 427
1.Facts and Procedural History .................. 427
2.Majority Opinion .............................. 428
3.Dissenting Opinion ............................ 430

III. Analysis .............................................. 430
A. The Rise of "New Federalism"..................... 430
1. The Rehnquist Court.......................... 431
B.The Scope of the Fifteenth Amendment............433
1. Congressional Authority Under Section 2.......433
C.Future Application................................434
1. Proper Standard?..............................434

IV. Conclusion............................................435

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I. INTRODUCTION

With its decision in Northwest Austin Municipal Utility District Number One v. Holder,(fn1) the U.S. Supreme Court sounded a warning shot across the bow of Section 5 of the Voting Rights Act.(fn2) This warning shot was prompted by the "big question"(fn3) raised by the "small utility district"(fn4) from Texas; namely, whether the provisions of Section 5, which prevent subject jurisdictions from making any changes in election procedure without advance clearance from authorities in Washington, D.C., are unconstitutional. Although it withheld judgment on the issue by electing to employ the principle of constitutional avoidance,(fn5) the Court made clear that the preclearance requirements under Section 5 implicated significant constitutional concerns, noting in particular the "federalism costs" of Section 5 and the scope of the Fifteenth Amendment.(fn6)

In Northwest Austin, the Supreme Court avoided ruling on the constitutionality of Section 5 of the Voting Rights Act by providing relief under Section 4 and granting the Northwest Austin Municipal Utility District the ability, as a political subdivision, to bail out of the preclearance requirements of Section 5.(fn7) While this approach disposed of the case, Chief Justice Roberts's opinion went through considerable pains to comment upon the current status of the Voting Rights Act, as renewed in 2006.(fn8) In its decision, the Court recited an impressive list of the "undeniable" accomplishments of the Act, which was only surpassed by the number of issues which gave the Court concern.(fn9) These concerns, which focus upon issues of federalism and the scope of the Fifteenth Amendment, appear to provide the Court with the impetus to do something unprecedented: invalidate a key provision of the Voting Rights Act.(fn10)

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Since its original enactment in 1965, Section 5 of the Voting Rights Act has enjoyed the consistent support of the Court, which has upheld the Section's constitutionality in the face of every challenge.(fn11) However, Northwest Austin signals that this support may erode in the near future, if the Court has not shifted its stance already. Central to this occurrence will be the standard that the Court chooses to apply to any future constitutional challenges to Section 5.(fn12) As noted by the Court, the competing standards are the "congruence and proportionality" test and the "rational means" test.(fn13) However, the current Court has summarily stated that "serious constitutional questions" exist even under the lower standard of the "rational means" test.(fn14) This statement, above all else, may be the most telling indicator of the Court's newfound discomfort with the provisions of Section 5.

Although its ultimate holding relied upon constitutional avoidance,(fn15) Northwest Austin is significant because it signals a coming shift in the Court's jurisprudence. Not only an invitation for future challenges to Section 5 of the Voting Rights Act, Northwest Austin reveals that the deference once paid to congressional fact-finding, at least under the Voting Rights Act, may well have reached its end. This Note will examine the implications of Northwest Austin upon what is arguably the most successful piece of civil rights legislation in our nation's history. In Part II, this Note will examine the history of constitutional challenges to the Voting Rights Act and similar legislation. In addition, this Note will demonstrate the emerging importance of federalism, as embodied in "New Federalism," as the dominant paradigm through which future challenges to the Voting Rights Act may be analyzed. Finally, Part III will analyze how the Court's opinion in Northwest Austin foreshadows the Court's shift in support for the Voting Rights Act, perhaps dooming the preclearance provisions of Section 5.

II. BACKGROUND

A. Section 5 and Congressional Fact-Finding

1. The Voting Rights Act

The Fifteenth Amendment provides that the "right of citizens of the United States to vote shall not be denied or abridged ... on account

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of race, color, or previous condition of servitude."(fn16) Congress is vested with the power "to enforce this article by appropriate legislation."(fn17) Accordingly, the Voting Rights Act has been described as "a complex scheme of stringent remedies" purposed to "rid the country of racial discrimination in voting."(fn18) Specifically, Section 2 of the Voting Rights Act "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.'"(fn19)

Instead of relying on piecemeal litigation to address the flagrant violations of voters' rights, Congress fashioned the Voting Rights Act as a remedy to "directly preempt[] the most powerful tools of black disenfranchisement in the covered areas."(fn20) Section 5 of the Voting Rights Act requires that any covered state or political subdivision may not enact a change in voting "standard, practice, or procedure" without showing that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color."(fn21) In short, the effect of Section 5 was to suspend all changes in state election procedure for covered jurisdictions "until they were submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the Attorney General."(fn22) Covered jurisdictions are defined under Section 4 of the Voting Rights Act, which provides "a formula defining the States and political subdivisions" to which the preemptive remedy applies.(fn23) Although the measures provided by Section 5 may appear stringent, a covered jurisdiction has the option of "bailing out" of the preclearance requirements if it can establish a number of facts.(fn24)

The Voting Rights Act was originally enacted in 1965, and it was initially authorized for five years.(fn25) It has been subsequently reauthorized by Congress a number of times, including: in 1970, when it was extended for five years; in 1975, when it was extended for seven years; in 1982, when it was extended for twenty-five years, and in 2006, when it was extended for another twenty-five years.(fn26)

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2. South Carolina v. Katzenbach

The first challenge to the Voting Rights Act was presented to the U.S. Supreme Court less than one year after President Johnson signed the original bill into law.(fn27) In South Carolina v. Katzenbach, the State of South Carolina filed a bill of complaint seeking a declaration that provisions of the Voting Rights Act were unconstitutional and requesting an injunction to prevent enforcement of the Voting Rights Act by the U.S. Attorney General.(fn28) The Supreme Court took original jurisdiction over the matter and expedited the case because of South Carolina's upcoming primary elections, which were to be held in June 1966.(fn29) The Supreme Court ruled that the challenged sections of the Voting Rights Act, including Section 5, were "an appropriate means for carrying out Congress's constitutional responsibilities" and denied South Carolina's requested injunction.(fn30)

In affirming the Voting Rights Act, the U.S. Supreme Court also validated the "voluminous legislative history" which Congress compiled in support of the Act.(fn31) The Supreme Court summarized the majority reports of the House and Senate Committees, and noted the legislative record documented "in considerable detail the factual basis" behind Congress's decision to address voter discrimination.(fn32) Further, the Court commented on the "great care" with which Congress explored the "problem of racial discrimination in voting"(fn33) and cited the significant amount of time that Congress spent on debate and hearings.(fn34) As later...