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Northwest Austin Municipal Utility Dist. Number One v. Mukasey

May 30, 2008


The opinion of the court was delivered by: Tatel, Circuit Judge

Three-judge court (PLF, EGS, DST)

Before: FRIEDMAN and SULLIVAN, District Judges, and TATEL, Circuit Judge.


Section 5 of the Voting Rights Act of 1965 prohibits "covered jurisdictions"-those states and political subdivisions with histories of racial discrimination in voting-from making any change in their voting procedures without first demonstrating to either the Attorney General or a three-judge panel of this court that the change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. Plaintiff, a municipal utility district in Texas, a covered jurisdiction, seeks a declaratory judgment exempting it from section 5's "preclearance" obligation. In the alternative, plaintiff challenges section 5's constitutionality, arguing that when Congress extended the provision in 2006 it lacked sufficient evidence of racial discrimination in voting to justify the provision's intrusion upon state sovereignty. We reject both claims. First, plaintiff is ineligible to seek a declaratory judgment exempting it from section 5 because it does not qualify as a "political subdivision" as defined in the Voting Rights Act. Second, applying the standard set forth by the Supreme Court in South Carolina v. Katzenbach, 383 U.S. 301 (1966), we conclude that given the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions, Congress's decision to extend section 5 for another twenty-five years was rational and therefore constitutional. Alternatively, we conclude that section 5's extension was constitutional even if, as plaintiff argues, its challenge is controlled by the stricter standard set forth in City of Boerne v. Flores, 521 U.S. 507 (1997). Given section 5's tailored remedial scheme, the extension qualifies as a congruent and proportional response to the continuing problem of racial discrimination in voting.

This opinion is organized as follows. Part I describes the background of this case, including the Voting Rights Act's passage and key provisions; the two decisions in which the Supreme Court sustained section 5's constitutionality, Katzenbach and City of Rome v. United States, 446 U.S. 156 (1980); the 2006 extension of section 5, which plaintiff challenges here; and the convening of this three-judge panel. See infra pp. 3-16. In Part II we explain why plaintiff is ineligible to seek a declaratory judgment exempting it from section 5. See infra pp. 16-23. In Part III we explain why we believe plaintiff's constitutional challenge is facial and why that challenge is governed by the standard set forth in Katzenbach. See infra pp. 24-44. Applying the Katzenbach standard in Part IV, we explain why Congress's decision to extend section 5 for another twenty-five years was constitutional. See infra pp. 45-93. In Part V we explain why section 5's extension survives even City of Boerne's more demanding test. See infra pp. 93-113. And finally, in Part VI we consider and reject two arguments plaintiff makes that could be construed as an as-applied challenge to section 5. See infra pp. 113-20.


Ratified in 1870 after the Civil War, the Fifteenth Amendment guarantees that "[t]he 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." U.S. CONST. amend. XV, § 1. Yet following Reconstruction, "[t]he blight of racial discrimination in voting . . . infected the electoral process in parts of our country for nearly a century." Katzenbach, 383 U.S. at 308. "Beginning in 1890," southern states "enacted tests . . . specifically designed to prevent Negroes from voting," making "the ability to read and write a registration qualification." Id. at 310-11. Black citizens faced many other obstacles, including property qualifications, good character tests, and "[d]iscriminatory administration of voting qualifications." Id. at 311-12. Congress eventually responded with the Civil Rights Acts of 1957, 1960, and 1964, each of which "tried to cope with the problem by facilitating case-by-case litigation against voting discrimination." Id. at 313. This case-by-case approach, however, did "little to cure the problem." Id. Convinced that it confronted "an insidious and pervasive evil . . . perpetrated . . . through unremitting and ingenious defiance of the Constitution," Congress decided to adopt "sterner and more elaborate measures," id. at 309, by enacting a "complex scheme of stringent remedies aimed at areas where voting discrimination ha[d] been most flagrant," id. at 315. As a result, after building a "voluminous legislative history" during eighteen days of committee hearings and twenty-nine days of floor debate, Congress, acting pursuant to section 2 of the Fifteenth Amendment-"Congress shall have power to enforce this article by appropriate legislation," U.S. CONST. amend. XV, § 2-approved the Voting Rights Act of 1965 by wide margins in both chambers. Katzenbach, 383 U.S. at 308-09; Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-1) ("1965 Act").

Section 2 of the Voting Rights Act contains the statute's basic prohibition: "No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973. Other provisions of the statute strengthen the equitable powers of federal courts, authorize civil and criminal penalties, and outlaw poll taxes. See 42 U.S.C. §§ 1973a(c), 1973h, 1973i(d), 1973j.

Unlike those provisions, which apply nationwide and are permanent, certain sections of the Act are temporary and apply only to states and political subdivisions with particularly egregious histories of racial discrimination in voting. In such "covered" jurisdictions, section 4(a) bans the use of any test or device to deny the right to vote. As originally enacted, the statute defined "test or device" as any requirement that a prospective voter "(1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." 1965 Act § 4(c), 79 Stat. at 438-39 (codified at 42 U.S.C. § 1973b(c)).

In addition to section 4(a), covered jurisdictions are subject to section 5-the provision challenged in this case. Section 5 prohibits any and all changes in voting regulations pending review and approval by the federal government in a process known as preclearance. 42 U.S.C. §§ 1973b, 1973c. To obtain preclearance of a proposed change under section 5, covered jurisdictions may either submit the proposed change to the United States Attorney General or seek a declaratory judgment from a three-judge panel of this court. 42 U.S.C. § 1973c. Under section 5, the Attorney General or the district court may preclear the change only if it "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color." Id. If the Attorney General interposes no objection after sixty days or if the district court grants a declaratory judgment, the jurisdiction may implement the change. Absent preclearance, covered jurisdictions may not modify any existing voting qualifications, standards, practices, or procedures. Another provision applicable only in covered jurisdictions authorizes the Attorney General to appoint federal election observers. 42 U.S.C. § 1973f.

To determine which jurisdictions would be covered, Congress adopted a formula that utilized two proxies for discrimination. Specifically, section 4(b) originally provided that the requirements of sections 4(a) and 5 would apply to any state or political subdivision that both: (1) according to the Attorney General maintained a test or device on November 1, 1964; and (2) according to the Director of the Census had registration or turnout rates below fifty percent of the voting age population in November 1964. 1965 Act § 4(b), 79 Stat. at 438 (codified as amended at 42 U.S.C. § 1973b(b)). This two-part coverage formula resulted in most southern states becoming covered jurisdictions. Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia were covered statewide. See 28 C.F.R. pt. 51 app. Thirty-nine of North Carolina's one hundred counties and one Arizona county also qualified for coverage as separately designated political subdivisions. See id.

Recognizing that section 4(b)'s formula could prove either over- or under-inclusive, Congress incorporated two procedures for adjusting coverage over time. First, as originally enacted, section 4(a) allowed jurisdictions to earn exemption from coverage by obtaining from a three-judge panel of this court a declaratory judgment that in the previous five years they had not used a test or device "for the purpose or with the effect of denying or abridging the right to vote on account of race or color." 1965 Act § 4(a), 79 Stat. at 438 (codified as amended at 42 U.S.C. § 1973b(a)). This "bailout" provision, as subsequently amended, addresses potential statutory over-inclusiveness, allowing jurisdictions with clean records to terminate their section 5 preclearance obligation. Second, section 3(c) authorizes courts to require preclearance by any non-covered state or political subdivision found to have violated the Fourteenth or Fifteenth Amendment. 42 U.S.C. § 1973a(c). Specifically, courts presiding over voting discrimination suits may "retain jurisdiction for such period as [they] may deem appropriate" and order that during that time no voting change take effect unless either approved by the court or unopposed by the Attorney General. Id. This judicial "bail-in" provision, known as a pocket trigger, addresses the formula's potential under-inclusiveness.

Less than two months after Congress passed the Voting Rights Act, South Carolina, invoking the Supreme Court's original jurisdiction, challenged the statute's constitutionality. The Court granted South Carolina leave to file a complaint, expedited the case, and invited other states to participate as amici curiae. South Carolina argued that certain provisions of the Voting Rights Act, including the coverage formula, the test or device ban, and section 5's preclearance requirement, "exceed[ed] the powers of Congress and encroach[ed] on an area reserved to the States by the Constitution." Katzenbach, 383 U.S. at 323. Rejecting these arguments, the Court held that Congress had properly exercised its enforcement power under section 2 of the Fifteenth Amendment. See id. at 327. The "fundamental principle" guiding the Court was this: "As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting." Id. at 324.

Four years after Katzenbach, and just before sections 4 and 5 were set to expire, Congress reauthorized and extended them for five years. Pub. L. No. 91-285, § 3, 84 Stat. 314, 315 ("1970 Amendments"). It extended them again in 1975, this time for seven years, Pub. L. No. 94-73, § 101, 89 Stat. 400, 400 ("1975 Amendments"), and then again in 1982, this time for twenty-five years, Pub. L. No. 97-205, §2(b)(8), 96 Stat. 131, 133 ("1982 Amendments"). Prior to each extension, Congress held numerous hearings and heard extensive testimony documenting the continued existence of racial discrimination in voting.

These reauthorizations amended the Voting Rights Act in several important ways. Most relevant to this case, the 1975 Amendments added section 4(f), which bars voting discrimination against certain language minorities-specifically, persons of American Indian, Asian American, Native Alaskan, and Spanish heritage. 1975 Amendments §§ 203, 207, 89 Stat. at 401-02 (codified as amended at 42 U.S.C. §§ 1973b(f), 1973l(c)(3)). Acting pursuant to the Fourteenth Amendment, as well as the Fifteenth, Congress expanded the definition of "test or device" to include the provision of English-only voting materials in jurisdictions where more than five percent of voting-age citizens belonged to a single language minority. Id. § 203, 89 Stat at 401-02 (codified at 42 U.S.C. § 1973b(f)(3)). As in the case of the 1970 Amendments, which added references to the 1968 election, 1970 Amendments § 4, 84 Stat. at 315 (codified as amended at 42 U.S.C. § 1973b(b)), the 1975 Amendments expanded coverage to jurisdictions that met section 4(b)'s two-part test in 1972, at that time the most recent presidential election, 1975 Amendments § 202, 89 Stat. at 401 (codified at 42 U.S.C. § 1973b(b)). The statute thus covered any jurisdiction that in 1972 used a test or device (including the provision of English-only voting materials to specified language minorities) and had registration or turnout rates below fifty percent. See id. §§ 203-204, 89 Stat. at 401-02 (codified at 42 U.S.C. § 1973b(b), (f)).

As a result of the 1975 language minority amendments, Texas, Alaska, and Arizona became covered, as did several counties in California, Colorado, Florida, New York, North Carolina, and South Dakota, plus two townships in Michigan. See 28 C.F.R. pt. 51 app. Section 4(f) requires these jurisdictions to provide all materials and information relating to the electoral process in the language of the applicable minority group as well as in English. 1975 Amendments § 203, 89 Stat. at 402 (codified as amended at 42 U.S.C. § 1973b(f)(4)). The Act's other requirements, including section 5, also apply to these most recently covered jurisdictions. Id. § 206, 89 Stat. at 402 (codified as amended at 42 U.S.C. §§ 1973-1973d, 1973k).

The 1975 Amendments, including their language minority provisions, were in effect in 1980 when the Supreme Court again upheld the constitutionality of section 5's preclearance requirement in City of Rome v. United States, 446 U.S. at 177-82. Rome, a municipality within the covered state of Georgia, argued that it was eligible for bailout and that section 5 was unconstitutional. The Court denied both claims, finding Rome ineligible to apply for bailout and "declin[ing] th[e] invitation to overrule Congress' judgment that the 1975 extension was warranted." Id. at 180. Emphasizing Congress's finding that "minority political progress under the Act, though undeniable, had been modest and spotty," id. at 181 (internal quotation marks omitted), the Court concluded that Congress's "considered determination that at least another 7 years of statutory remedies were necessary to counter the perpetuation of 95 years of pervasive voting discrimination is both unsurprising and unassailable," id. at 182.

The 1982 reauthorization amended the bailout mechanism in two respects. First, it sharply increased the number of jurisdictions eligible to pursue bailout. Previously, only states or separately designated political subdivisions (such as covered counties in non-covered states) could seek bailout. In the 1982 Amendments, however, Congress allowed political subdivisions within covered states to apply for bailout, even if such subdivisions had never been separately designated for coverage. 1982 Amendments § 2(b)(2), 96 Stat. at 131 (codified as amended at 42 U.S.C. § 1973b(a)(1)). Second, the 1982 Amendments altered the substantive requirements for bailout. To qualify for bailout under earlier versions of the Act, covered jurisdictions had to show that during some period of time-the previous five, ten, or seventeen years, depending upon the version of the Act then in effect-they had maintained no test or device and no court had found they had denied or abridged the right to vote. See 1965 Act § 4(a), 79 Stat. at 438; 1970 Amendments § 3, 84 Stat. at 315; 1975 Amendments §§ 101, 201, 206, 89 Stat. at 400-02. Because this approach "offered no bailout opportunity for jurisdictions that eliminated discriminatory voting tests and practices that [had been] used at the time of initial coverage," Congress liberalized the standard to give even those jurisdictions with post-1965 histories of discrimination an incentive to improve their voting rights records. Paul F. Hancock & Lora L. Tredway, The Bailout Standard of the Voting Rights Act: An Incentive to End Discrimination, 17 Urb. Law. 379, 381 (1985). To accomplish this, the 1982 Amendments require covered jurisdictions seeking bailout to demonstrate (among other things) that during the past ten years they used no test or device, were the subject of no judicial findings of racial discrimination in voting, successfully precleared all voting changes, and engaged in constructive efforts to eliminate intimidation and harassment of voters. See 1982 Amendments § 2(b)(4), 96 Stat. at 131-32 (codified at 42 U.S.C. § 1973b(a)(1)(A)-(F)); see also id., 96 Stat. at 132-33 (codified at 42 U.S.C. § 1973b(a)(2)-(4)) (listing additional requirements). By early 2006, eleven counties and cities, all in Virginia, had successfully obtained exemptions under the new standards. Moreover, according to the Attorney General, no bailout applications have been denied since 1984, Def.'s Mem. in Opp'n to Pl.'s Mot. for Summ. J. at 29 ("Def.'s Opp'n"), the year in which the current procedures became effective, 1982 Amendments § 2(b), 96 Stat. at 131.

In October 2005, well before section 5 and the Act's other temporary provisions were set to expire, Congress began considering whether to extend them once again. During several months of hearings, the House and Senate Judiciary Committees compiled a legislative record "no less extensive . . . than in prior years." H.R. REP. NO. 109-478, at 11 (2006). Because the constitutional question we face in this case turns in no small part on the care with which Congress approached its task, we quote in full the House Judiciary Committee's description of its work:

H.R. 9 results from the development of one of the most extensive legislative records in the Committee on the Judiciary's history.


Oversight Hearings

Prior to introducing H.R. 9, the House Committee on the Judiciary held ten oversight hearings before the Subcommittee on the Constitution examining the effectiveness of the temporary provisions of the [Voting Rights Act ("VRA")] over the last 25 years. During these oversight hearings, the Subcommittee heard oral testimony from 39 witnesses, including State and local elected officials, scholars, attorneys, and other representatives from the voting and civil rights community. The Committee also received additional written testimony from the Department of Justice, other interested governmental and non-governmental organizations (NGOs), and private citizens. In all, the Committee assembled over 12,000 pages of testimony, documentary evidence and appendices from over 60 groups and individuals, including several Members of Congress.

In addition to the oral and written testimony, the Committee requested, received, and incorporated into its hearing record two comprehensive reports that have been compiled by NGOs that have expertise in voting rights litigation and extensively documented: (1) the extent to which discrimination against minorities in voting has and continues to occur; and (2) the continued need for the expiring provisions of the VRA. The Committee also requested, received, and incorporated into its record 11 separate reports that document the extent to which discrimination occurred in 11 of the 16 States covered in whole or in part under Section 4(b) over the last 25 years. Those reports also describe the impact that the VRA has had on protecting racial and language minority citizens from discriminatory voting techniques in those jurisdictions. Legislative Hearings

In addition to ten oversight hearings, the Subcommittee on the Constitution held two legislative hearings on May 4, 2006, to examine H.R. 9. During these hearings, the Committee received oral and written testimony from seven additional witnesses concerning: (1) the impact that H.R. 9 will have on continuing the progress that minority groups have made in the last forty years and on protecting racial and language minority voters over the next 25 years; and (2) the need for H.R. 9 to update the VRA's temporary provisions, and to restore the VRA to its original intent so that it can continue to be an effective remedy in addressing the history and continuing vestiges of racial discrimination.

Id. at 5. The Senate Judiciary Committee undertook its own extensive hearings, resulting in a combined record "of over 15,000 pages." S. REP. NO. 109-295, at 10 (2006). One of the comprehensive reports Congress requested and relied heavily upon came from the National Commission on the Voting Rights Act, an entity "composed of a politically and ethnically diverse group of men and women, including former elected and appointed public officials, scholars, lawyers, and leaders." 1 Voting Rights Act: Evidence of Continued Need, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 104, 121 (Mar. 8, 2006) ("1 Evidence of Continued Need") (appendix to statements of Bill Lann Lee and Joe Rogers), available at The Commission held ten hearings around the country, heard testimony from more than one hundred witnesses, and compiled a record of several thousand pages. Id. at 12, 110. The Commission's report, entitled Protecting Minority Voters: The Voting Rights Act at Work, 1982-2005, contains a number of maps, id. at 252-87, several of which we have included in this opinion. Map 1, on the next page, identifies all currently covered jurisdictions (though it includes the Virginia counties and cities that have bailed out). Id. at 252.

Based on the extensive legislative record described above, Congress concluded that "vestiges of discrimination in voting continue to exist." Pub. L. No. 109-246, § 2(b)(2), 120 Stat. 577, 577 (2006) ("2006 Amendments"). According to the House Judiciary Committee, its "findings of continued efforts to discriminate against minority citizens in voting demonstrate that despite substantial improvements, there is a demonstrated and continuing need to reauthorize the temporary provisions." H.R. REP. NO. 109-478, at 53 (2006). As a result, in July 2006 Congress extended section 5 for an additional twenty-five years. Entitled the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, the statute, which passed overwhelmingly in both chambers (unanimously in the Senate and by 390-33 in the House), overruled several Supreme Court decisions interpreting section 5's substantive test, but otherwise left the law virtually unchanged. 2006 Amendments, 120 Stat. at 577. President George W. Bush signed the bill into law on July 27, 2006.

Just days after the 2006 Amendments became effective, plaintiff Northwest Austin Municipal Utility District Number One filed this action. Created in the late 1980s to facilitate the development of a residential subdivision, the District is a local government entity in Texas that sits within the boundaries of Austin and Travis County but remains independent of both. Am. Compl. ¶ 6. The District provides infrastructure, waste and wastewater service, and other local services to its approximately 3,500 residents. Id.; Def.'s Statement of Uncontested Material Facts ¶¶ 45, 52. The five members of the District's board of directors serve staggered four-year terms, with elections held every two years. Def.'s Statement of Uncontested Material Facts ¶¶ 55, 58-59. Although counties control voter registration under Texas law, the District conducted its own board of directors elections until 2002. Id. ¶¶ 17-27, 120. Since then, Travis County, pursuant to a written agreement with the District, has administered the District's elections at a shared polling place. Id. ¶¶ 28-34.

The District makes two claims in its amended complaint. Claim I seeks a declaratory judgment pursuant to section 4(a) exempting the District from section 5's preclearance requirement. Alternatively, Claim II alleges that section 5 "is an unconstitutional overextension of Congress's enforcement power to remedy past violations of the Fifteenth Amendment." Am. Compl. at p. 8. In his answer, the Attorney General argues that because the District is not a political subdivision as defined in the Act, it may not bail out under section 4(a). Def.'s Answer at 5. The Attorney General also defends the Act's constitutionality, arguing that renewal of section 5 represented a valid exercise of Congress's express authority to enforce the Fourteenth and Fifteenth Amendments. Mem. in Supp. of Def.'s Mot. for Summ. J. at 7 ("Def.'s Mem.").

As required by section 4(a), a district court of three judges was convened to hear the District's challenge. See 42 U.S.C. § 1973b(a)(5) ("An action pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court."); 28 U.S.C. § 2284(b)(1) ("Upon the filing of a request for three judges, the judge to whom the request is presented shall . . . immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge."). Several parties sought and received permission to intervene as defendants: Travis County, the Texas State Conference of NAACP Branches, the Austin Branch of the NAACP, People for the American Way, eleven District residents (David, Lisa, and Gabriel Diaz; Nicole and Rodney Louis; Wendy, Jamal, and Marisa Richardson; Yvonne and Winthrop Graham; and Nathaniel Lesane), and three residents from elsewhere in Texas (Jovita Casares, Angie Garcia, and Ofelia Zapata). The Brennan Center for Justice submitted an amicus curiae brief. Following extensive discovery, the parties filed cross-motions for summary judgment, and we heard oral argument on September 17, 2007. We express our gratitude to the parties and counsel for the cooperative and skilled manner in which they have conducted themselves throughout these important and complex proceedings, from discovery through briefing and oral argument.


We begin with bailout. As noted above, section 5 requires covered jurisdictions to obtain federal approval for any change in voting procedures unless a three-judge panel of this court has issued a declaratory judgment terminating the jurisdiction's section 5 preclearance obligation. 42 U.S.C. § 1973c. Until 1982 section 4(a) limited bailout to two types of entities: (1) covered states, and (2) political subdivisions covered "as a separate unit." See 1965 Act § 4(a), 79 Stat. at 438; 1982 Amendments § 2(b)(2), 96 Stat. at 131 (codified at 42 U.S.C. § 1973b). According to section 14(c)(2), "[t]he term 'political 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." 1965 Act § 14(c)(2), 79 Stat. at 445 (codified at 42 U.S.C. § 1973l(c)(2)). As a result, apart from covered states, only political subdivisions separately designated for coverage could seek bailout. So, for example, Texas could seek bailout as a covered state, as could certain counties in California, North Carolina, and other non-covered states (see Map 1, supra p. 13). But political subdivisions within covered states-such as Travis County, in which the District is located-could not apply for bailout despite meeting the section 14(c)(2) definition because they had never been separately designated for coverage. See City of Rome, 446 U.S. at 167 (finding city ineligible to seek bailout because "the coverage formula of § 4(b) ha[d] never been applied to it").

In 1982, however, Congress expanded bailout eligibility to include section 14(c)(2) political subdivisions within covered states. 1982 Amendments § 2(b)(2), 96 Stat. at 131 (codified at 42 U.S.C. § 1973b(a)(1)). It accomplished this by inserting the italicized language into section 4(a), which bans the use of tests or devices and identifies entities eligible to seek bailout:

To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under the first two sentences of subsection (b) of this section or in any political subdivision of such State (as such subdivision existed on the date such determinations were made with respect to such State), though such determinations were not made with respect to such subdivision as a separate unit, or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia issues a declaratory judgment under this section.

Id. By including political subdivisions within covered states even though they had not been designated for coverage "as a separate unit," Congress made jurisdictions like Travis County eligible to seek bailout.

The District claims that although it does not qualify as a political subdivision under section 14(c)(2)-having never "conduct[ed] registration for voting," 42 U.S.C. § 1973l(c)(2)-it is nonetheless eligible to apply for bailout because Congress intended the term "political subdivision" as used in amended section 4(a) to carry its common meaning: "[a] division of a state that exists primarily to discharge some function of local government." BLACK'S LAW DICTIONARY 1197 (8th ed. 2004). As an undisputed subunit of Texas, the District claims, it easily satisfies the common definition of political subdivision and thus qualifies to seek section 4(a) bailout even though it does not register voters. In support of this argument, the District relies on dictum from United States v. Board of Commissioners of Sheffield, Alabama, 435 U.S. 110 (1978), a voting rights case decided several years prior to the 1982 Amendments. There, emphasizing that section 4(a)'s ban on the use of tests or devices "operates 'in any [designated] State . . . or in any [designated] political subdivision,'" id. at 120 (quoting 42 U.S.C. § 1973b(a)), the Court held that once a state has been designated for coverage, section 5's preclearance requirement applies to all political units within it regardless of whether the units qualify as section 14(c)(2) political subdivisions, id. at 122. As an aside, the Court noted-in a sentence crucial to the District's claim-that a similar result would follow where a separately designated political subdivision (rather than a state) was the covered entity because section 14(c)(2)'s definition "was intended to operate only for purposes of determining which political units in non-designated States may be separately designated for coverage under § 4(b)." Id. at 128-29 (emphasis added). Reiterating this point in a nearby footnote, the Court said that "the only limitation § 14(c)(2) imposes on the Act pertains to the areas that may be designated for coverage." Id. at 129 n.16 (emphasis added).

Arguing that "[w]hen Congress amends a statute, it is presumed to be mindful of prior judicial interpretations of that statute," the District claims that when Congress amended section 4(a) it did so in light of Sheffield's dictum that the only purpose of section 14(c)(2)'s definition is to identify which political subunits qualify for coverage in section 4(b). Pl.'s Mot. for Summ. J. with Mem. of P. & A. in Supp. of Mot. for Summ. J. at 19 ("Pl.'s Mem."). Although the District acknowledges that Congress can overrule the Supreme Court's interpretation of a statute simply by changing the law, see, e.g., Ill. Brick Co. v. Illinois, 431 U.S. 720, 736 (1977) ("[I]n the area of statutory construction . . .

Congress is free to change this Court's interpretation of its legislation."), it points out that section 14(c)(2) underwent no change at all, meaning that Congress left Sheffield's limiting construction intact. See Pl.'s Mem. at 18. We disagree.

That Congress left section 14(c)(2) undisturbed does not resolve the question before us. Eligibility for bailout is governed by section 4(a), which, as noted above, Congress expanded in 1982 to include "any political subdivision of [a covered] State . . . , though [the coverage] determinations were not made with respect to such subdivision as a separate unit." 42 U.S.C. § 1973b(a)(1). Had Congress stopped at the comma, there might be some question as to whether it intended to use the term "political subdivision" in its broadest sense. But Congress did not stop at the comma. Instead, it added the phrase "though [the coverage] determinations were not made with respect to such subdivision as a separate unit." Id. This language demonstrates that Congress intended "political subdivision" to refer only to section 14(c)(2) political subdivisions-that is, counties, parishes, and voter-registering subunits-since only "such subdivision[s]" can be separately designated for coverage. Under the District's interpretation, this language would be surplusage. See, e.g., United States v. Menasche, 348 U.S. 528, 538-39 (1955) ("It is our duty 'to give effect, if possible, to every clause and word of a statute.'" (quoting Inhabitants of Montclair Twp. v. Ramsdell, 107 U.S. 147, 152 (1883)). On its face, then, amended section 4(a) excludes political subunits-like the District-that do not register voters and thus could not have been separately designated for coverage.

The House and Senate Reports accompanying the 1982 Amendments further clarify that Congress intended the expanded bailout mechanism to encompass only section 14(c)(2) political subdivisions. The 1981 House Report states that the "standard for bail-out is broadened to permit political subdivisions, as defined in Section 14(c)(2), in covered states to seek to bail out although the state itself may remain covered." H.R. REP. NO. 97-227, at 2 (1981) (emphasis added). Leaving no doubt about the issue, the same report observes that "[w]hen referring to a political subdivision this amendment refers only to counties and parishes except in those rare instances in which the county does not conduct vote[r] registration; only in such rare instances . . . can a jurisdiction smaller than a county or parish file for bailout." Id. at 39. The 1982 Senate Report not only includes almost identical language, see S. REP. NO. 97-417, at 2, 69 (1982), but also explains why Congress expressly rejected the broad definition of political subdivision advanced by the District here:

Towns and cities within counties may not bailout separately. This is a logistical limit. As a practical matter, if every political subdivision were eligible to seek separate bailout, we could not expect that the Justice Department or private groups could remotely hope to monitor and to defend the bailout suits. It would be one thing for the Department and outside civil rights litigators to appear in hundreds of bailout suits. It would be quite another for them to have to face many thousands of such actions because each of the smallest political subunits could separately bail out. Few questioned the reasonableness and fairness of this cutoff in the House.

Id. at 57 n.192. In support of its position, the District points to passages in the 1982 and 2006 committee reports encouraging covered jurisdictions to use the broadened bailout mechanism. See, e.g., H.R. REP. NO. 109-478, at 58 (2006) (expressing "hope[] that more covered States and political subdivisions will take advantage of the [bailout] process"). None of these statements, however, even hints that political subdivisions outside section 14(c)(2)'s definition would qualify for bailout. Section 4(a)'s legislative history thus confirms what its plain language reveals: political subunits like the District are not qualified to seek bailout.

This conclusion is reinforced by post-1982 developments. In 1987 the Attorney General issued a regulation providing that only political subdivisions as defined in section 14(c)(2) may seek bailout. One provision of the regulation states that "a covered jurisdiction or a political subdivision of a covered State" may seek to terminate coverage, 28 C.F.R. § 51.5, while another clarifies that the regulation uses the term political subdivision "as defined in the Act" and quotes section 14(c)(2) in full, id. § 51.2. This matters for two reasons. First, the Supreme Court "traditionally afford[s] substantial deference to the Attorney General's interpretation of § 5 in light of [his] 'central role . . . in formulating and implementing'" the preclearance system. Lopez v. Monterey County, 525 U.S. 266, 281 (1999) (quoting Dougherty County Bd. of Educ. v. White, 439 U.S. 32, 39 (1978)) (citing cases). Second, when Congress reauthorized section 5 in 2006, it had every opportunity to override the Attorney General's 1987 interpretation, yet declined to do so. Not only was Congress aware of the regulation-it was contained in the legislative record-but it knew that eleven Virginia political subdivisions had relied on the regulation and successfully bailed out. See 2 Voting Rights Act: Section 5 of the Act-History, Scope, and Purpose, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 3364-74 (Oct. 25, 2005) ("2 Section 5 History"), available at 24120_vol.2.pdf; H.R. REP. NO. 109-478, at 93 (2006). Had Congress disagreed with the Attorney General's interpretation, "it presumably would have clarified its intent when re-enacting the statute in [2006]." Dougherty, 439 U.S. at 38. Congress's silence on this matter is especially salient given that at least two witnesses urged Congress- unsuccessfully as it turned out-to expand bailout eligibility to encompass governmental subunits smaller than counties and parishes. See Reauthorizing the Voting Rights Act's Temporary Provisions: Policy Perspectives and Views from the Field, Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the S. Comm. on the Judiciary, 109th Cong. 237 (June 21, 2006) ("Reauthorizing the Voting Rights Act") (statement of John J. Park, Jr.), available at; Voting Rights Act: An Examination of the Scope and Criteria for Coverage under the Special Provisions of the Act, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 91 (Oct. 20, 2005) ("Examination of Scope and Criteria for Coverage") (statement of J. Gerald Hebert (counsel here for Travis County)), available at

Given this extensive evidence of clear legislative intent-both textual and historical-we need say little about Sheffield. As we explained above, Sheffield relates to section 5 preclearance, not section 4(a) bailout. See City of Rome, 446 U.S. at 168 (observing that Sheffield does "not even discuss the bailout process"). Moreover, the Sheffield language on which the District relies pertains to an issue that the Court itself said it "need not consider," namely how section 5 would apply to a subunit of a separately designated political subdivision. Sheffield, 435 U.S. at 128. In any event, even if, as Sheffield's dictum suggests, section 14(c)(2)'s definition originally operated only to identify entities eligible for coverage, the amended section 4(a)'s text and legislative history make clear that Congress used that definition in 1982 for an additional purpose: to identify those entities eligible to seek bailout.

The District's remaining arguments are equally unpersuasive. First, it argues that Texas law, which the District says recognizes municipal utility districts as political subdivisions, qualifies it as a political subdivision for purposes of the Voting Rights Act. But because section 14(c)(2) of the Voting Rights Act expressly defines the term "political subdivision," we need not resort to state law. In any event, the case the District cites in support of this argument, Dougherty County, makes only a passing reference to state law and in no way relies upon it. See 439 U.S. at 43 & n.13. Second, the District insists that limiting bailout to section 14(c)(2) political subdivisions would eviscerate or distort other provisions of the Act, such as by denying cities the right to seek judicial preclearance under section 5 or by exempting cities from section 2's nationwide obligations. This is incorrect. Like section 5, those provisions all refer to "State[s] or political subdivision[s]," and Sheffield holds that the Act applies to all political subunits in a covered state or political subdivision-meaning that cities may file for judicial preclearance and must comply with section 2. Finally, the District asserts that bailout is impractical for most counties given their size and the number of political subunits they contain. But nothing in the record supports this claim. In fact, since 1984 every single applicant for bailout has succeeded.

In the end, deciding which entities may seek bailout is a question for Congress, not the courts. In 1982 Congress increased ten-fold the number of entities eligible to apply for bailout-from approximately 91 to almost 900. Def.'s Statement of Uncontested Material Facts ¶¶ 113-14. If the District believes this expansion was too modest, it should address its concerns to Congress.


Having determined that the District is ineligible to seek bailout, we turn to its primary argument: that section 5 "should be stricken as unconstitutional under the Tenth, Fourteenth, and Fifteenth Amendments" because Congress "irrationally and incongruously" chose to continue imposing "disproportionate" burdens and a "badge of shame" on covered jurisdictions on the basis of an "ancient formula" and "conditions that existed thirty or more years ago but have long since been remedied." Am. Compl. ¶¶ 19-22. Defending the statute, the Attorney General argues that Congress, given its findings of continued discrimination and its judgment that failure to renew the Act's temporary provisions would undermine significant gains in minority participation, properly extended section 5 in "a valid exercise of its authority under the Fourteenth and Fifteenth Amendments." Def.'s Mem. at 9. The intervenors likewise contend that "[s]section 5 is valid enforcement legislation under the Fourteenth and Fifteenth Amendments and is consistent with principles of federalism." Reply Mem. in Supp. of Def.-Intervenors' Mots. for Summ. J. at 8.

Before addressing the District's constitutional claim, we must determine whether its challenge is facial, as applied, or both. In its original complaint, the District argued that section 5 should "be struck down as unconstitutional, either on its face, or as applied." Compl. ¶ 23. In its amended complaint, however, the District reframed its case exclusively as an "as applied" challenge, leaving the parties and this court puzzled about the District's intentions. Am. Compl. ¶ 23. Nowhere has the District explained-not in its amended complaint, not in its briefs, and not at oral argument-the nature of its as-applied challenge or how that claim differs from the facial challenge pleaded in its original complaint. In any event, as the Attorney General and intervenors point out, the nature of the District's challenge, however labeled, is facial. Like the plaintiffs in Katzenbach and City of Rome, the District alleges that section 5 exceeds Congress's enumerated powers. Although the District uses the as-applied label in its amended complaint, the arguments offered in its briefs-which focus almost exclusively on the legislative record and the statutory design-indicate that it still regards its challenge as facial. Accordingly, we shall treat the District's challenge as facial. See infra Parts IV and V. Out of an abundance of caution, however, we shall also consider the two arguments the District makes that could be construed as reflecting an as-applied challenge. See infra Part VI.

In order to resolve the District's facial challenge to section 5, we must first determine the appropriate standard of review. In two lines of cases, the Supreme Court has articulated two distinct standards for evaluating the constitutionality of laws enforcing the Civil War Amendments. One line, relied on by the District, begins with City of Boerne v. Flores, 521 U.S. 507, in which the Court established a congruence and proportionality test for certain legislation enacted pursuant to section 5 of the Fourteenth Amendment. According to the District, in extending section 5 of the Act, Congress failed to clear the "high evidentiary hurdle" of showing that "a 1965 remedy was congruent and proportional to the facts on the ground in 2006." Pl.'s Mem. at 43. Disagreeing, the Attorney General, supported by the Diaz intervenors, argues that given Congress's amply supported findings that section 5 "has been effective at preventing and remedying some voting discrimination" and that "covered jurisdictions continue to discriminate in voting against minority citizens," the provision "remains a congruent and proportional means of enforcing the Constitution's prohibition on race and national origin discrimination in voting." Def.'s Mem. at 8-9; see also Mem. in Supp. of Mot. for Summ. J. of Def.-Intervenors Lisa Diaz et al. at 8-10 ("Diaz Mem."). Although NAACP intervenors agree with the Attorney General that Congress has satisfied the congruence and proportionality standard, they also invoke an earlier and less demanding test, namely the one articulated in South Carolina v. Katzenbach, 383 U.S. 301. Mem. of P. & A. in Supp. of Mot. for Summ. J. of Def.-Intervenors Texas NAACP et al. at 27, 29 ("NAACP Mem."). There, the Supreme Court held that when acting pursuant to Section 2 of the Fifteenth Amendment, "Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting." Katzenbach, 383 U.S. at 324 (emphasis added). Applying that standard, the Court sustained the constitutionality of the Voting Rights Act both as originally enacted, id. at 337, and as extended in 1975 under both the Fourteenth and Fifteenth Amendments, City of Rome, 446 U.S. at 183. According to NAACP intervenors, an "unbroken line of authority refutes any possible contention" that the holdings in Katzenbach and City of Rome have "lost their force . . . because Boerne requires a different analysis." NAACP Mem. at 35. Further developing this theory, the Brennan Center for Justice argues that "while the Supreme Court has found some statutes were not an appropriate means of enforcing the Fourteenth Amendment, the Court has been far more deferential when Congress's Fifteenth Amendment powers are at stake." Mem. of Law of the Brennan Center for Justice at NYU School of Law, Amicus Curiae, in Supp. of Def.'s and Def.-Intervenors' Mot. for Summ. J. at 2.

In the following pages we summarize these two lines of cases in some detail: the Katzenbach rationality standard in Part IIIA and the more rigorous City of Boerne test in Part IIIB. Informed by this review, we conclude in Part IIIC that notwithstanding the City of Boerne cases, Katzenbach's rationality standard remains fully applicable to constitutional challenges to legislation aimed at preventing racial discrimination in voting.


In South Carolina v. Katzenbach, the Supreme Court began by explaining the Fifteenth Amendment's impact on the relationship between Congress and the states: by adding section 2's enforcement clause, "the Framers indicated that Congress was to be chiefly responsible for implementing the rights created in § 1. . . . Accordingly, in addition to the courts, Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting." Katzenbach, 383 U.S. at 326. As framed by the Court, the "basic question" was whether Congress had "exercised its powers under the Fifteenth Amendment in an appropriate manner with relation to the States." Id. at 324. To answer this question, the Court employed the test set forth in McCulloch v. Maryland for statutes enacted pursuant to the Necessary and Proper Clause: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Id. at 326 (quoting McCulloch v. Maryland, 17 U.S. 316, 421 (1819)). Put simply, "[a]s against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting." Id. at 324.

Applying this deferential standard, the Court declared the Act a "legitimate response" to "nearly a century of systematic resistance to the Fifteenth Amendment." Id. at 328. Emphasizing the "great care" with which Congress examined racial discrimination in voting, the Court explained that two points "emerge[d] vividly from the voluminous legislative history":

First: Congress felt itself confronted by an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution. Second: Congress concluded that the unsuccessful remedies which it had prescribed in the past would have to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment.

Id. at 308-09. Restricting section 5 and the other temporary provisions to certain states was "permissible," the Court concluded, because having compiled "reliable evidence of actual voting discrimination" in covered jurisdictions, Congress had only to show that its coverage formula was "relevant to the problem." Id. at 329-30. The Court found the formula "rational in both practice and theory." Id. at 330. The Court also concluded that section 5 preclearance represented a "permissibly decisive" response to the risk that covered jurisdictions "might try" to devise new voting rules to evade the Act's remedies, as certain states had previously done "in the face of adverse court decrees." Id. at 335. "Exceptional conditions," the Court declared, "can justify legislative measures not otherwise appropriate." Id. at 334.

Just three months later, in Katzenbach v. Morgan, 384 U.S. 641 (1966), the Court extended Katzenbach's rationality test to provisions of the Voting Rights Act passed pursuant to section 5 of the Fourteenth Amendment. Like section 2 of the Fifteenth Amendment, section 5 of the Fourteenth Amendment gives Congress "power to enforce, by appropriate legislation, the provisions of this article." U.S. CONST. amend. XIV, § 5. At issue in Morgan was section 4(e), which provides (in effect) that no person who successfully completes sixth grade in an accredited Spanish-language school in Puerto Rico "shall be denied the right to vote in any Federal, State, or local election because of his inability to read, write, understand, or interpret . . . English." 42 U.S.C. § 1973b(e). New York voters challenged section 4(e), arguing that it exceeded Congress's Fourteenth Amendment authority. Holding that McCulloch's rationality standard provides "the measure of what constitutes 'appropriate legislation' under § 5 of the Fourteenth Amendment," Morgan, 384 U.S. at 651 (quoting U.S. CONST. amend. XIV, § 5), the Court concluded that Congress had reasonably determined that section 4(e) would promote the nondiscriminatory provision of public services by enhancing the Puerto Rican community's "political power," id. at 652-53. The Court also found that Congress could reasonably have enacted section 4(e) to eliminate "an invidious discrimination in establishing voter qualifications." Id. at 653-54.

In subsequent years, the Supreme Court repeatedly applied the rationality standard in cases challenging the constitutionality of Voting Rights Act reauthorizations. For example, as part of the 1970 reauthorization, Congress renewed section 4(a)'s ban on literacy tests and extended it to the entire nation. 1970 Amendments § 201, 84 Stat. at 315 (codified as amended at 42 U.S.C. § 1973aa). In Oregon v. Mitchell, 400 U.S. 112 (1970), the Court, though splintering on other issues, applied Katzenbach and Morgan and unanimously sustainedthe nationwide ban. Id. at 118 (opinion of Black, J.) (announcing judgment of the Court); id. at 217 (opinion of Harlan, J.) ("[T]he choice which Congress made was within the range of the reasonable."); id. at 231 (opinion of Brennan, J.) ("[C]ongressional power to enact the challenged Amendments is found in the enforcement clauses of the Fourteenth and Fifteenth Amendments, and . . . we may easily perceive a rational basis for the congressional judgments underlying each of them."). Eight justices believed the Fifteenth Amendment gave Congress ample authority to extend the ban; one believed the Fourteenth Amendment did so. See City of Rome, 446 U.S. at 176-77 & n.13 (discussing Mitchell). None required Congress to make a terribly strong evidentiary showing. Indeed, Justice Harlan wrote that "[d]espite the lack of evidence of specific instances of discriminatory application or effect, Congress could have determined that racial prejudice is prevalent throughout the Nation, and that literacy tests unduly lend themselves to discriminatory application, either conscious or unconscious." Mitchell, 400 U.S. at 216 (opinion of Harlan, J.). In another case involving the 1970 Amendments, Georgia v. United States, 411 U.S. 526 (1973), Georgia challenged the constitutionality of section 5's extension, but the Court summarily rejected the claim, reiterating that "for the reasons stated at length in [Katzenbach] . . . the Act is a permissible exercise of congressional power under § 2 of the Fifteenth Amendment." Id. at 535.

In 1975, this time acting pursuant to both the Fourteenth and Fifteenth Amendments, Congress again extended section 5, adding provisions to protect the voting rights of language minorities-defined as "persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." 1975 Amendments § 207, 89 Stat. at 402 (codified at 42 U.S.C. § 1973l(c)(3)); see also 28 C.F.R. § 55.1 (adopting same definition); supra pp. 7-8. Challenging the constitutionality of the 1975 extension and foreshadowing the issue we face here, Rome, Georgia, argued that section 5's preclearance provisions "had outlived their usefulness" and no longer represented appropriate enforcement legislation. City of Rome, 446 U.S. at 180. Rejecting this argument, the Supreme Court reaffirmed Katzenbach's holding that Congress's authority under section 2 of the Fifteenth Amendment is "no less broad than its authority under the Necessary and Proper Clause." Id. at 175. According to the Court, then, the question before it was whether "Congress could rationally have concluded" that extending section 5 was necessary. Id. at 177.

Applying this permissive standard, the Court reviewed three types of evidence compiled by Congress: (1) racial disparities in registration and turnout rates; (2) the number of black elected officials; and (3) the number and types of voting changes submitted for preclearance, along with the number and nature of objections interposed by the Attorney General. Id. at 180-81. The Court found that Congress had given "careful consideration" to this evidence-which showed that progress since 1965, "though 'undeniable,' had been 'modest and spotty'"-and "decline[d] this invitation to overrule Congress' judgment that the 1975 extension was warranted." Id. (quoting H.R. REP. NO. 94-196, at 7-11 (1975); S. REP. NO. 94-295, at 11-19 (1975)). As the Court explained, Congress thought reauthorization "necessary to preserve the 'limited and fragile' achievements of the Act" and to "counter the perpetuation of 95 years of pervasive voting discrimination." Id. at 182 (quoting H.R. REP. NO. 94-196, at 10-11 (1975)). According to the Court, this "considered determination" was "both unsurprising and unassailable," making section 5's extension "plainly a constitutional method of enforcing the Fifteenth Amendment." Id.

The final case in this series, Lopez v. Monterey County, 525 U.S. 266, came just nine years ago. There, the Court held that Monterey County, a separately designated political subdivision in California, had to preclear voting changes required by state law "notwithstanding the fact that the State is not itself a covered jurisdiction." Id. at 282.

Citing both Katzenbach and City of Rome, the Court observed that it had "specifically upheld the constitutionality of § 5 of the Act against a challenge that this provision usurps powers reserved to the States." Id. at 283. Even the dissent recognized that both Katzenbach and City of Rome had "compared Congress' Fifteenth Amendment enforcement power to its broad authority under the Necessary and Proper Clause." Id. at 294 (Thomas, J., dissenting). Critically, neither the majority nor the dissent questioned that standard even though Lopez came two years after City of Boerne, the case that announced the congruence and proportionality test, to which we now turn.


The Fourteenth Amendment cases upon which the District relies begin with City of Boerne, which involved a constitutional challenge to the Religious Freedom Restoration Act (RFRA). City of Boerne, 521 U.S. at 515-16. Purporting to enforce the Constitution's free exercise guarantee, Congress relied on section 5 of the Fourteenth Amendment to apply RFRA to the states. Though acknowledging that section 5 represents a broad grant of legislative power to remedy and deter constitutional violations, even if the prohibited conduct itself is constitutional or the prohibition intrudes on state sovereignty, the Court stressed that this power is "'not unlimited.'" Id. at 518 (quoting Mitchell, 400 U.S. at 128 (opinion of Black, J.)). In particular, the Court held that Congress's remedial power authorizes it neither to "decree the substance of the Fourteenth Amendment's restrictions" nor to "make a substantive change in the governing law." Id. at 519. While observing that Congress deserves "wide latitude" in drawing the line between remedial and substantive legislation, the Court demanded "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at 520 (emphasis added).

The Court held that RFRA failed this test for several reasons. To begin with, the legislative history documented not a single state law involving deliberate religious persecution in the previous forty years; the congressional hearings instead focused on laws imposing incidental burdens on the free exercise of religion. Id. at 530. The Court contrasted this record, which "lack[ed] examples of modern instances of generally applicable laws passed because of religious bigotry," with the "record which confronted Congress and the Judiciary in the voting rights cases." Id. Moreover, RFRA's "[s]weeping coverage" and lack of either a termination date or termination mechanism led the Court to view it as far "out of proportion to a supposed remedial or preventive object." Id. at 532. Finally, by imposing litigation burdens and regulatory constraints on states, RFRA exacted "substantial costs" that "far exceed[ed] any pattern or practice of unconstitutional conduct." Id. at 534. For all of these reasons, the Court held that Congress had exceeded its Fourteenth Amendment authority by applying RFRA to the states. In doing so-and central to the issue before us-the Court contrasted RFRA with section 5 of the Voting Rights Act, observing that the latter included an expiration date, affected a discrete class of state laws, applied only to regions where discrimination was severe, and allowed covered jurisdictions to bail out. Id. at 532-33.

In a series of later cases, the Court refined City of Boerne's congruence and proportionality test, holding that those parts of three statutes abrogating state sovereign immunity exceeded Congress's Fourteenth Amendment authority. In each case the Court left intact statutory provisions, enacted pursuant to the Commerce Clause, that regulated private conduct. In the first case, Florida Prepaid Post-secondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1998), the Court invalidated provisions of the Patent and Plant Variety Protection Remedy Clarification Act that made states liable in federal courts for patent infringement. Id. at 647. In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the Court struck down provisions of the Age Discrimination in Employment Act that authorized suits for money damages against state employers. Id. at 91. And in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), the Court invalidated provisions of Title I of the Americans with Disabilities Act (ADA) that subjected state employers to money damages for violating the Act. Id. at 374. As in City of Boerne, the Court contrasted the thin legislative records of unconstitutional state action in Florida Prepaid and Garrett with the "undisputed record of racial discrimination confronting Congress in the voting rights cases." Fla. Prepaid, 527 U.S. at 640; see also Garrett, 531 U.S. at 373 ("In t[he Voting Rights] Act, Congress documented a marked pattern of unconstitutional action by the States."). Also, as in City of Boerne, the Court contrasted the broad accommodation duty at issue in Garrett with the Voting Rights Act's "detailed but limited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant evidence of States' systematic denial of those rights was identified." Garrett, 531 U.S. at 373.

Following these cases, two statutes abrogating state sovereign immunity pursuant to the Fourteenth Amendment survived constitutional challenges under the City of Boerne test. In Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), the Court rejected a challenge to Family and Medical Leave Act (FMLA) provisions allowing recovery of money damages from states. Id. at 740. One year later, in Tennessee v. Lane, 541 U.S. 509 (2004), the Court rejected a constitutional challenge to ADA Title II, which generally prohibits states from excluding disabled individuals from public services, programs, and entities, including state courthouses-the focus of plaintiffs' claims. Id. at 533-34. In Hibbs the Court emphasized that as with the Voting Rights Act, Congress enacted the FMLA only after being "confronted [with] a 'difficult and intractable proble[m]' where previous legislative attempts had failed." Hibbs, 538 U.S. at 737 (citations omitted) (second alteration in original); see also Lane, 541 U.S. at 531 ("[Congress] faced . . . considerable evidence of the shortcomings of previous legislative responses."). Distinguishing Garrett and Kimel, the Court explained in both Hibbs and Lane that Congress sought to enforce a right or to protect a class that receives heightened judicial scrutiny: suspect gender classifications (the FMLA) and the fundamental right of access to courts (ADA Title II). Hibbs, 538 U.S. at 735; Lane, 541 U.S. 529. By contrast, as the Court had previously observed, disparate state treatment on the basis of age (Kimel) and disability (Garrett) receive only rational basis review. Kimel, 528 U.S. at 83; Garrett, 531 U.S. at 366-68.

Taken together, these four cases-Kimel, Garrett, Hibbs, and Lane-add a preliminary but critical step to the City of Boerne test: identification of the right or protected class at issue. That is, before assessing the adequacy of the record of unconstitutional state conduct and determining whether Congress's remedial scheme is congruent and proportional to the constitutional harm, courts must decide whether a challenged statute implicates a fundamental right or protected class. As the Court explained in Hibbs, if the right or class at issue receives heightened scrutiny, "it [will be] easier for Congress to show a pattern of state constitutional violations." Hibbs, 538 U.S. at 736. For example, "[b]ecause racial classifications are presumptively invalid, most of the States' acts of race discrimination" that Congress documented in passing the Voting Rights Act of 1965 "violated the Fourteenth Amendment." Id.


Now that we have summarized Katzenbach's rationality standard and City of Boerne's congruence and proportionality test, the time has come to choose between them. For two independent reasons, we believe that Katzenbach'srationality standard governs this case.

The first reason is City of Rome. There, the Supreme Court addressed a facial challenge to the 1975 extension of section 5, which Congress had enacted pursuant to both the Fourteenth and Fifteenth Amendments. To resolve that challenge, the Court applied Katzenbach's rationality test, finding the extension a reasonable response to the problem of continued racial discrimination in voting. Here we confront precisely the same issue: a facial challenge to an extension of section 5 based on both the Fourteenth and Fifteenth Amendments.

To be sure, at the time of City of Rome there was no indication that the Fourteenth and Fifteenth Amendment standards might differ. See Morgan, 384 U.S. at 650-51 (applying same rationality standard to both Fourteenth and Fifteenth Amendments); see also City of Rome, 446 U.S. at 180-82 (upholding section 5 with reference only to the Fifteenth Amendment); id. at 208 n.1 (Rehnquist, J., dissenting) ("[Because] the nature of the enforcement powers conferred by the Fourteenth and Fifteenth Amendments has always been treated as coextensive . . . , it is not necessary to differentiate between the Fourteenth and Fifteenth Amendment powers for the purposes of this opinion.") (citations omitted). Not until City of Boerne did the Supreme Court establish the more restrictive congruence and proportionality test for certain statutes enacted pursuant to the Fourteenth Amendment. In our view, however, the City of Boerne standard does not apply to the issue before us. To begin with, although the City of Boerne cases repeatedly describe the Voting Rights Act as congruent and proportional, they never state that Katzenbach's and City of Rome's more deferential standard no longer governs constitutional challenges to statutes aimed at racial discrimination in voting. In fact, none of those cases even involved a statute dealing with race or voting rights. What's more, in Lopez, decided two years after City of Boerne, the Court cited both Katzenbach and City of Rome with approval while rebuffing a constitutional challenge to section 5's "federalism costs." Lopez, 525 U.S. at 282-83 (internal quotation marks omitted). True, the same passage quotes City of Boerne, but only for the general proposition that Congress possesses broad enforcement powers. Id.

Nor does anything in City of Boerne cast doubt on Morgan, in which the Court applied Katzenbach's rationality test to a provision of the Voting Rights Act that Congress enacted pursuant to the Fourteenth Amendment and crafted to protect the voting rights of a specific language minority. See supra pp. 28-29. The City of Boerne Court discussed Morgan at some length, explaining that it had upheld section 4(e) as a "reasonable attempt to combat" unconstitutional discrimination by the state of New York. City of Boerne, 521 U.S. at 527-28 (emphasis added). Indeed, citing Morgan and viewing section 4(e) as a measure aimed at "racial discrimination," Justice Scalia announced in Lane, the most recent of the City of Boerne cases, that "I shall leave it to Congress, under constraints no tighter than those of the Necessary and Proper Clause, to decide what measures are appropriate under § 5 [of the Fourteenth Amendment] to prevent or remedy racial discrimination by the States." Lane, 541 U.S. at 561, 564 (Scalia, J., dissenting).

Moreover, the basic concerns animating the City of Boerne cases do not apply to legislation designed to prevent racial discrimination in voting. In City of Boerne itself, the Court worried that Congress, by relying on its authority to enforce the Fourteenth Amendment's broad guarantees, could "decree the substance" of that amendment's restrictions on the states, thereby transforming the Constitution from a "superior paramount law" into something "on a level with ordinary legislative acts." City of Boerne, 521 U.S. at 519, 529 (citations and internal quotation marks omitted). The risk that Congress might redefine substantive rights carries special force in the Fourteenth Amendment context because that amendment functions as the vehicle through which various rights, including the Constitution's broadly drafted equal protection and due process guarantees, apply to the states. See, e.g., Romer v. Evans, 517 U.S. 620, 628-29 (1996) (observing that "heightened equal protection scrutiny" applies to classifications involving sex, illegitimacy, race, and ancestry); Washington v. Glucksburg, 521 U.S. 702, 720 (1997) (observing that "in addition to the specific freedoms protected by the Bill of Rights," the Due Process Clause protects "the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion" (citations omitted)); see also 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 936 (3d ed. 2000) ("Because the [Fourteenth A]mendment's phrases are so open to a range of interpretations, they invite not only remedial congressional legislation, but congressional definition of the very rights themselves."). No such risk exists here because the Voting Rights Act focuses exclusively on racial discrimination-the precise evil addressed by the Civil War Amendments-in the narrow context of voting, as the Fifteenth Amendment expressly authorizes. See, e.g., Mitchell, 400 U.S. at 127 (opinion of Black, J.) (noting, in upholding ban on use of literacy tests or other devices to discriminate against voters on account of race, that "the Civil War Amendments were unquestionably designed to condemn and forbid every distinction, however trifling, on account of race").

In the cases following City of Boerne, the Court also worried that Congress had impermissibly included states within the ambit of statutes targeting non-state actors. Those cases all involve broadly applicable statutes enacted under both the Fourteenth Amendment and the Commerce Clause. In that context, the Court refused to "infer from Congress' general conclusions regarding societal discrimination . . . that the States had likewise participated in such action." Garrett, 531 U.S. at 371. Through the congruence and proportionality test, the post-Boerne cases thus require Congress, when relying on the Fourteenth Amendment to abrogate state sovereign immunity through statutes enacted primarily under the Commerce Clause, to establish an adequate record of constitutional violations by states rather than compiling evidence of discrimination by private actors. Congress satisfied this requirement in 2006 when it extended section 5 on the basis of a legislative record that focused almost exclusively on state actors. Equally significant, the prohibitions contained in the Voting Rights Act apply only to states and their political subunits. Cf. United States v. Morrison, 529 U.S. 598, 625-27 (2000) (holding that Congress exceeded its authority to enforce the Fourteenth Amendment by enabling victims of gender-motivated violence to file suits against private perpetrators, not "any State or state actor").

There is a second, independent reason we feel bound to apply Katzenbach's and City of Rome's rationality standard. Even if the City of Boerne cases changed the test for all statutes enacted pursuant to the Fourteenth Amendment, including provisions aimed at preventing racial discrimination in voting, those cases leave the Fifteenth Amendment standard untouched. The City of Boerne cases all arose under the Fourteenth Amendment, not the Fifteenth, and although the Court described Congress's powers to enforce the two amendments as "parallel," City of Boerne, 521 U.S. at 518, and observed in a footnote that their enforcement clauses are "virtually identical," Garrett, 531 U.S. at 373 n.8, such dicta hardly suffice to overrule Katzenbach and City of Rome. Indeed, the Supreme Court has never applied the congruence and proportionality test to legislation enforcing the Fifteenth Amendment. See Eldred v. Ashcroft, 537 U.S. 186, 218 (2003) ("[P]etitioners ask us to apply the 'congruence and proportionality' standard described in cases evaluating exercises of Congress' power under § 5 of the Fourteenth Amendment. But we have never applied that standard outside the § 5 context." (citation omitted)).

This matters a great deal because, at its core, this is a Fifteenth Amendment case: while Congress cited the Fourteenth Amendment when it adopted the Act's protections for language minorities in 1975 and extended them in 2006, it could have relied solely on its Fifteenth Amendment authority. Although the Supreme Court has yet to speak precisely to whether the Fifteenth Amendment protects language minorities, its decisions strongly suggest that such minorities, at least as defined in the Act, qualify as racial groups. For example, in a recent case involving native Hawaiian voters, the Supreme Court held that "[a]ncestry can be a proxy for race" and that the Fifteenth Amendment protects "all persons, not just members of a particular race." Rice v. Cayetano, 528 U.S. 495, 512, 514 (2000). Further, in a case involving an Arab-American plaintiff, the Court held that a statutory ban on racial discrimination protects "identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry." Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987). Finally, in Mitchell, where the Supreme Court sustained the constitutionality of the nationwide literacy test ban, two of the opinions that relied on the Fifteenth Amendment treated both Native Americans and individuals with "Spanish surname[s]" as racial minorities. Mitchell, 400 U.S. at 132 (opinion of Black, J.); id. at 235 (opinion of Brennan, J.). Given that section 5 protects specific language minorities, all identified by ancestry or heritage, Congress could have based the provision's expansion solely upon the Fifteenth Amendment.

This conclusion finds support in Supreme Court cases treating Latinos as a racial group protected by the Fourteenth Amendment's Equal Protection Clause. As early as 1954, in a case challenging the exclusion of Mexican-Americans from jury service, the Court rejected Texas's argument that "there are only two classes-white and Negro- within the contemplation of the Fourteenth Amendment." Hernandez v. Texas, 347 U.S. 475, 477 (1954). The Court instead found that persons of Mexican descent represented an identifiable class protected against discrimination because "residents of [Jackson County] distinguished between 'white' and 'Mexican'" in segregating their local schools, courthouse bathrooms, and "at least one restaurant." Id. at 479. Similarly, in a case involving a Texas legislative redistricting, the Court affirmed a district court order finding that a multi-member district was "invidiously discriminatory" against Mexican- Americans, which the Court regarded as a "cognizable racial or ethnic group[]." White v. Regester, 412 U.S. 755, 756, 767-70 (1973); see also Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 195, 198 (1973) (finding that in Denver-a "tri-ethnic" community-blacks and Hispanics "suffer identical discrimination in treatment when compared with the treatment afforded Anglo students"). Finally, in a more recent Texas redistricting case, the Court treated the state's Latino population as a distinct minority group characterized by "racially polarized voting." League of United Latin Am. Citizens v. Perry, 126 S.Ct. 2594, 2615 (2006) ("LULAC") (emphasis added); see also id. at 2663 (Roberts, C.J., dissenting) ("It is a sordid business, this divvying us up by race."); id. at 2667 (Scalia, J., dissenting) ("[W]hen a legislature intentionally creates a majority-minority district, race is necessarily its predominant motivation."). Because the Fifteenth Amendment, like the Fourteenth, prohibits discrimination on the basis of race, these cases, which treat persons of Spanish heritage as a distinct racial group, support the conclusion that the Fifteenth Amendment gave Congress all the authority it needed to extend section 5 to protect language minorities.

Indeed, the Justice Department advised Congress that it had no need to invoke the Fourteenth Amendment in order to expand section 5 protection to language minorities. "[I]t is clear," the Justice Department explained in a 1975 memorandum to the Senate Judiciary Committee, "that [the Fifteenth Amendment's] protection is not limited to blacks." Extension of the Voting Rights Act of 1965, Hearing Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 94th Cong. 698 (Apr. 29, 1975) (exhibit to testimony of J. Stanley Pottinger). The Department pointed out that when drafting the Fifteenth Amendment, the Senate "twice rejected . . . a provision which stated that: 'Citizens . . . of African descent shall have the same right to vote and hold office . . . as other citizens,'" and that some opposition to this proposal "was based on the belief that the amendment's protection should not be limited to one race." Id. (second and third omissions in original). Moreover, California and Oregon refused to ratify the amendment in part because of "fear that it would lead to enfranchisement of Chinese persons." Id. Finally, given that "there was general agreement in Congress in 1869 that the 15th Amendment would protect the voting rights of Indians," id. at 699, and given that the "vast majority of the population of Mexico is at least in part of Indian ancestry," the Justice Department concluded by "stat[ing] firmly . . . that Congress has the power under [section] 2 of the 15th Amendment to enact legislation protecting the voting rights of [Mexican-Americans] or Puerto Ricans," id. at 700. The Department explained that this view was consistent with its implementation of the Voting Rights Act: in reviewing section 5 submissions, the Attorney General had consistently "treat[ed] Indians, Puerto Ricans and Mexican-Americans as racial groups." Id. at 698.

Having heard the Justice Department's advice, Congress cited the Fourteenth Amendment only out of an abundance of caution. The Senate Report explains:

The Department of Justice and the United States Commission on Civil Rights have both expressed the position that all persons defined in this title as "language minorities" are members of a "race or color" group protected under the Fifteenth Amendment. However, the enactment of the expansion amendments under the authority of the Fourteenth as well as the Fifteenth Amendment, would doubly insure the constitutional basis for the Act. S. REP. NO. 94-295, at 47-48 (1975) (emphasis added). Thus, although Congress cited the Fourteenth Amendment when it extended section 5 in 1975, 1982, and 2006, it had no need to do so, as it could have relied solely on the Fifteenth Amendment.

To sum up, given relevant Supreme Court precedent, we must treat this case either as a sequel to City of Rome or as a straightforward Fifteenth Amendment case. Either way we must apply Katzenbach's and City of Rome's rationality test. With its greater degree of deference to Congress, this test is proper here because, put simply, this case implicates Congress's express constitutional authority to remedy racial discrimination in voting. None of the City of Boerne cases involved two such essential rights, much less any rights so close to the core objectives of the Civil War Amendments. We thus have no basis for reading those cases as overturning the Court's longstanding rule, set forth in Katzenbach and followed in Morgan, Mitchell, Georgia, and City of Rome, that "against the reserved powers of the states, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting." Katzenbach, 383 U.S. at 324.

Indeed, as a district court bound by Supreme Court precedent, we would follow Katzenbach and City of Rome even if we thought the City of Boerne cases cast some doubt on those cases. As the Supreme Court has warned, "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [district courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Here, the decisions that "directly control[]" are Katzenbach and City of Rome, for only they resolve constitutional challenges to section 5 of the Voting Rights Act.


Before applying Katzenbach's rationality standard to the record before us, we can easily dispose of three of the District's broader attacks on the Act's constitutionality, for each was squarely considered and rejected in City of Rome. First, the District challenges section 5 as an extraordinarily intrusive federal mandate that "interfere[s] with and reorder[s] state government," violating rights reserved to the states under the Tenth Amendment. Pl.'s Mem. at 26. In City of Rome, however, the Court made clear that the Fifteenth Amendment was "specifically designed as an expansion of federal power and an intrusion on state sovereignty." 446 U.S. at 179. Second, the District argues that because the Fifteenth Amendment prohibits only "measures implemented with the intent and effect of denying racial minorities access to the ballot," section 5 "cuts too broad a swath" given that it covers a "vast amount of clearly constitutional government activity." Pl.'s Mem. at 45, 56. Rejecting the identical argument in City of Rome, the Court held that "the Act's ban on electoral changes that are discriminatory in effect is an appropriate method of promoting the purposes of the Fifteenth Amendment, even if it is assumed that § 1 of the Amendment prohibits only intentional discrimination in voting." City of Rome, 446 U.S. at 177; cf. Lopez, 525 U.S. at 282 ("[Section] 5's preclearance requirement applies to a covered county's non-discretionary efforts to implement a voting change required by state law, notwithstanding the fact that the State is not itself a covered jurisdiction."). Finally, pointing to congressional findings of "significant progress" under the Act, the District insists that "Congress could not permissibly [extend section 5] with no showing that [the] extraordinary conditions [of 1965] persist in modern times." Pl.'s Mem. at 46-47. Yet in City of Rome, while acknowledging minority political progress since 1965, the Court still accepted Congress's judgment that extension of section 5's preclearance requirement was "necessary . . . to promote further amelioration of voting discrimination." City of Rome, 446 U.S. at 182 (emphasis added).

With the District's resurrected arguments out of the way, we turn to the primary task before us. Under Katzenbach and City of Rome, we ask whether Congress could rationally have concluded that unless it extended section 5, "racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years." 2006 Amendments § 2(b)(9), 120 Stat. at 578. Given that the Court in City of Rome found the 1975 legislative record sufficient to demonstrate that Congress had rationally extended section 5, the more precise questions before us are these: how do the nature and magnitude of the racial discrimination in voting revealed in the 2006 legislative record compare to the conditions documented by Congress in 1975, and is the 2006 record sufficiently comparable to the 1975 record for us to conclude that Congress again acted rationally when it extended section 5 for another twenty-five years?


Keeping Katzenbach's deferential standard firmly in mind and using the 1975 legislative record as a guidepost, we begin our review of the 2006 legislative record with Congress's consideration of the three categories of evidence the Court examined in City of Rome: racial disparities in registration (as well as turnout), the number of minority elected officials, and objections by the Attorney General. We then examine additional evidence Congress relied upon in 2006: "more information request" letters from the Attorney General, judicial preclearance suits, section 5 enforcement actions, section 2 litigation, appointment of federal election observers, and racially polarized voting. This summary concludes with evidence of section 5's deterrent effect. All citations are to evidence contained in the legislative record. A few studies ...

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