The opinion of the court was delivered by: John D. Bates United States District Judge
Section 5 of the Voting Rights Act of 1965 ("the Act") prevents certain "covered" jurisdictions from implementing any change to voting practices or procedures unless and until the jurisdiction demonstrates to federal authorities 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. Praised by some as the centerpiece of the most effective civil rights legislation ever enacted, Section 5 has been condemned by others as an impermissible federal encroachment on state sovereignty. In 2009, the Supreme Court addressed Congress's 2006 extension of Section 5 and, although avoiding the merits of a facial constitutional challenge to Section 5's "preclearance" obligation, nonetheless expressed concern about the provision's continued vitality, noting that "[t]he Act's preclearance requirements and its coverage formula raise serious constitutional questions." Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2513 (2009) ("Nw. Austin II").
Today, those serious constitutional questions can no longer be avoided. Shelby County, Alabama ("Shelby County" or "plaintiff"), a jurisdiction covered by Section 4(b) of the Act, 42 U.S.C. § 1973b(b), has brought this suit against the Attorney General ("defendant") seeking a declaratory judgment that Section 5 and Section 4(b) are facially unconstitutional, and a permanent injunction prohibiting defendant from enforcing these provisions. Compl. ¶¶ 1, 44(a)-(b). Specifically, Shelby County alleges that Section 4(b)'s coverage formula and Section 5's preclearance obligation for covered jurisdictions exceed Congress's enforcement authority under the Fourteenth and Fifteenth Amendments, and violate the principle of "equal sovereignty" embodied in the Tenth Amendment and Article IV of the U.S. Constitution. Id. ¶¶ 36-43.
This Court is mindful that "judging the constitutionality of an Act of Congress is 'the gravest and most delicate duty that [it] is called on to perform.'" Nw. Austin II, 129 S. Ct. at 2513 (quoting Blodgett v. Holden, 275 U.S. 142, 147-48 (1927) (Holmes, J., concurring)). That duty is all the more sensitive where, as here, the challenged statute seeks to enforce the core Fifteenth Amendment prohibition against denial of the franchise on the basis of race. The Fifteenth Amendment provides 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 95 years after the Amendment's ratification, the struggle for the realization of this constitutional guarantee was far from complete. See H.R. Rep. No. 89-439, at 2439 (1965). In 1965, literacy tests, poll taxes, and other devices were still being "widely used" in certain regions of the country as part of "a calculated plan to deprive Negroes of their right to vote." Id. at 2443. When traditional litigation proved ineffective to counter "those determined to circumvent the guarantees of the 15th amendment," id. at 2441, Congress decided that "the wrong to our citizens is too serious -- the damage to our national conscience is too great not to adopt more effective measures than exist today," id. at 2442. Hence, almost a century after the Fifteenth Amendment was ratified, Congress passed the Voting Rights Act of 1965 -- with Section 5 at its core -- in order "to make the guarantees of the Fifteenth Amendment finally a reality for all citizens." Allen v. State Bd. of Elections, 393 U.S. 544, 556 (1969). Congress reauthorized the Act three times (in 1970, 1975 and 1982), and the Supreme Court upheld each reauthorization against constitutional challenges. See Nw. Austin II, 129 S. Ct. at 2510.
Certainly, today Section 5's continued constitutionality "must be judged with reference to the historical experience which it reflects." South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). But the Supreme Court has also made clear that history alone cannot provide a valid basis for upholding Section 5 indefinitely; rather, "the Act imposes current burdens and must be justified by current needs." Nw. Austin II, 129 S. Ct. at 2512. This Court has now carefully reviewed the extensive 15,000-page legislative record that Congress amassed in support of its 2006 reauthorization of Section 5 and Section 4(b). It is, of course, Congress that is charged in the first instance under the Fifteenth Amendment with formulating the legislation needed to enforce it. Id. at 2513. Bearing in mind both the historical context and the extensive evidence of recent voting discrimination reflected in that virtually unprecedented legislative record, the Court concludes that "current needs" -- the modern existence of intentional racial discrimination in voting -- do, in fact, justify Congress's 2006 reauthorization of the preclearance requirement imposed on covered jurisdictions by Section 5, as well as the preservation of the traditional coverage formula embodied in Section 4(b). Applying the standard of review articulated by the Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997), this Court finds that Section 5 remains a "congruent and proportional remedy" to the 21st century problem of voting discrimination in covered jurisdictions.
I. The History of the Voting Rights Act of 1965
The Voting Rights Act of 1965 "was designed by Congress to banish the blight of racial discrimination in voting." Katzenbach, 383 U.S. at 308. Although the Fifteenth Amendment guaranteed African-American citizens the right to vote as early as 1870, southern states quickly responded by creating a series of voting qualifications and devices to perpetuate black disenfranchisement. See id. at 310-311; see also H.R. Rep. No. 89-439, at 2439-40. None of this new voting legislation mentioned race on its face, but it was nonetheless "motivated entirely and exclusively by a desire to exclude the Negro from voting." H.R. Rep. No. 89-439, at 2443, 2451. Southern states imposed poll taxes, which disproportionately burdened African-Americans as a result of their comparatively lower incomes. See id. at 2451-53. They enacted literacy requirements as a precondition to voting "based on the fact that as of 1890 . . . more than two-thirds of the adult Negroes [in southern states] were illiterate while less than one-quarter of the adult whites were unable to read or write." Katzenbach, 383 U.S. at 311. And they adopted alternate tests, such as grandfather clauses and property qualifications, in order to "assure that white illiterates would not be deprived of the franchise." Id.
Not only were these tests intentionally discriminatory in their design, but southern voting officials were given unfettered discretion to administer them in a discriminatory fashion. Officials would refuse to accept poll taxes from blacks seeking to pay them, or would withhold poll tax exemption certificates from otherwise-qualified black applicants. See H.R. Rep. No. 89- 439, at 2452. They would provide whites with "easy versions" of literacy tests or excuse them altogether, but demand that blacks pass "difficult versions . . . without the slightest error." Katzenbach, 383 U.S. at 312-13. Other voting qualifications -- including the infamous "good-morals requirement" and "constitutional interpretation" tests -- were so inherently "vague and subjective" that they "constituted an open invitation to abuse at the hands of voting officials." Id.
In addition to these methods of direct disenfranchisement, southern officials before 1965 also enacted laws designed to dilute black voting strength, if and when blacks were able to register and cast ballots. Specifically, southern officials "gerrymandered election districts, instituted at-large elections, annexed or deannexed land as it fit their racial and partisan interests, and required huge bonds of officeholders." J. Morgan Kousser, The Strange, Ironic Career of Section 5 of the Voting Rights Act, 1965-2007, 86 TEX. L. REV. 667, 678-79 (2008); see also To Examine the Impact and Effectiveness of the Voting Rights Act, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 1138 (Oct. 18, 2005) ("Impact and Effectiveness") (Chandler Davidson and Bernard Grofman, eds., Quiet Revolution in the South: The Impact of the Voting Rights Act 1965-1990 (Princeton University Press 1994)). These tactics aimed at reducing the ability of blacks to elect candidates of their choice --sometimes referred to as "[d]isenfranchisement by indirection" -- were widely employed throughout the South in the late nineteenth century, and they reemerged during the "Second Reconstruction" of the mid-twentieth century as well. See 1 Voting Rights Act: Evidence of Continued Need, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 142 (Mar. 8, 2006) (hereinafter, "1 Evidence of Continued Need") (National Commission on the Voting Rights Act, Protecting Minority Voters: The Voting Rights Act at Work 1982-2005 (Feb. 2006) (hereinafter, "Nat'l Comm'n Report")); see also An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization, Hearing Before the S. Comm. on the Judiciary, 109th Cong. 206 (May 9, 2006) ("Introduction to Expiring Provisions") (prepared statement of Chandler Davidson).
The Supreme Court eventually responded to these attempts to evade the requirements of the Reconstruction Amendments by striking down some of the most egregious practices used to impede blacks from effectively exercising their right to vote. See Katzenbach, 383 U.S. at 311-12 (internal citations omitted). The Court invalidated grandfather clauses in 1915, see Guinn v. United States, 238 U.S. 347 (1915); Myers v. Anderson, 238 U.S. 368 (1915); outlawed the so-called "white primary" in 1944, see Smith v. Allwright, 321 U.S. 649 (1944); and condemned racial gerrymandering in 1960, when the city of Tuskegee, Alabama, attempted to transform its square-shape into "a strangely irregular twenty-eight-sided figure," which had the effect of removing "from the city all save four or five of its 400 Negro voters while not removing a single white voter or resident," Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960).*fn1
Congress also responded to southern states' sophisticated disenfranchisement strategies by enacting civil rights legislation in 1957, 1960, and 1964, which sought to "facilitat[e] case-by-case litigation against voting discrimination." Katzenbach, 383 U.S. at 313. But it soon became apparent that "case-by-case" litigation would not be sufficient to protect African-Americans' access to the ballot. See H.R. Rep. No. 89-439, at 2440-41. Not only was litigation expensive and slow, but even where it proved successful, southern officials would often ignore court orders, "close their registration offices to freeze the voting rolls," or "merely switch to discriminatory devices not covered by the federal decrees." Katzenbach, 383 U.S. at 314. As Congress explained, "[b]arring one contrivance too often has caused no change in result, only in methods." H.R. Rep. No. 89-439, at 2441. Hence, in 1965 Congress decided that "sterner and more elaborate measures" were needed to combat the "insidious and pervasive evil which had been perpetrated in certain parts of our country through unremitting and ingenious defiance of the Constitution." Katzenbach, 383 U.S. at 309.
To craft these measures effectively, the Senate and House Committees on the Judiciary held hearings for nine days, during which they discussed 122 proposed voting rights bills and heard testimony from 67 witnesses. See id.; see also H.R. Rep. No. 89-439, at 2438. The House debated the legislation for three full days, while the Senate discussed the Act for almost a month. See Katzenbach, 383 U.S. at 308. Ultimately, when it came time to vote, "the verdict of both chambers was overwhelming": the Voting Rights Act of 1965 passed by a margin of 328-74 in the House, and 79-18 in the Senate. Id.; see also Voting Rights Act of 1965 ("1965 Act"), Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. § 1973 et seq.).
The Act's basic prohibition against racial discrimination in voting is contained in Section 2, which provides that "[n]o 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. Although Section 2 echoes the language of the Fifteenth Amendment, at least since 1982 it has been interpreted to prohibit a broader category of conduct than that which the Amendment itself proscribes, as it forbids all electoral practices with discriminatory "results," not just those enacted with a discriminatory purpose. Compare City of Mobile v. Bolden, 446 U.S. 55, 62 (1980) (holding that Section 2 merely restates "the prohibitions already contained in the Fifteenth Amendment" and that "racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation") with S. Rep. No. 97-417, at 28 (1982) (explaining Congress's intent to amend Section 2 in response to City of Mobile to make clear that a plaintiff can establish a Section 2 violation "without proving any kind of discriminatory purpose"). Other provisions of the Voting Rights Act ban poll taxes, 42 U.S.C. § 1973h, prohibit voter intimidation and coercion, 42 U.S.C. § 1973i(b), and establish civil and criminal sanctions for the deprivation of rights secured by the Act, 42 U.S.C. § 1973j.
In addition to these permanent provisions -- which apply nationwide -- the Act sets forth "a complex scheme of stringent remedies aimed at areas where voting discrimination has been the most flagrant." Katzenbach, 383 U.S. at 315. These targeted provisions are temporary, and only apply to jurisdictions that are "covered" under Section 4(b). For example, Section 4(a) of the Act bans the use of voting tests in all covered jurisdictions, see 42 U.S.C. § 1973b(a), while Section 8 authorizes the Attorney General to send federal observers to enter polling places and monitor elections in covered jurisdictions when "necessary to enforce the guarantees of the 14th or 15th amendment," 42 U.S.C. § 1973f(a)(2); see also H.R. Rep. No. 109-478, at 91 (2006).*fn2
Section 5, however, remains the most innovative -- and the most controversial -- of the Act's targeted, temporary provisions. Under Section 5, a covered jurisdiction cannot make any changes to its voting qualifications, standards, practices, or procedures unless those changes are first "submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the Attorney General." See Nw. Austin II, 129 S. Ct. at 2509; 42 U.S.C. § 1973c. Preclearance under Section 5 will only be granted if a jurisdiction can show that its proposed voting change "neither 'has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.'" Nw. Austin II, 129 S. Ct. at 2509 (quoting 42 U.S.C. § 1973c(a)).
Section 5 constituted a direct response to the "common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down." Beer v. United States, 425 U.S. 130, 140 (1976). Prior to 1965, such novel methods of minority disenfranchisement would continue to operate "until the Justice Department or private plaintiffs were able to sustain the burden of proving that the new law, too, was discriminatory." Id. But with the passage of Section 5, Congress "shift[ed] the advantage of time and inertia from the perpetrators of the evil to its victim," Katzenbach, 383 U.S. at 328. Rather than requiring minority voters to sue to challenge discriminatory voting practices after their implementation, Section 5 places the burden on covered jurisdictions to show their voting changes are nondiscriminatory before those changes can be put into effect. See id.
If a jurisdiction covered by Section 5 chooses to submit its proposed electoral change to the Attorney General for preclearance, and the Attorney General does not interpose an objection to the change within 60 days, the change may be implemented as proposed. See 42 U.S.C. § 1973c(a); see also City of Rome v. United States, 446 U.S. 156, 170 (1980). If the Attorney General does interpose an objection, the submitting jurisdiction "may at any time request the Attorney General to reconsider an objection," see 28 C.F.R. § 51.45(a), or it may institute a declaratory judgment action before a three-judge panel of this Court, seeking "de novo consideration of whether the method of election violates rights protected by the Voting Rights Act or the Constitution," Cnty. Council of Sumter Cnty. v. United States, 555 F. Supp. 694, 706-07 (D.D.C. 1983) (three-judge court); see also City of Rome v. United States, 450 F. Supp. 378, 381-82 (D.D.C. 1978) (three-judge court), aff'd, 446 U.S. 156 (1980) (explaining that "even if . . . the Attorney General objects to certain proposed electoral changes, the applicant-jurisdiction can always seek . . . a declaratory judgment from a three-judge court in this District . . . "); 28 C.F.R. § 51.11 (noting that "[s]ubmission to the Attorney General does not affect the right of the submitting authority to bring an action in the U.S. District Court for the District of Columbia for a declaratory judgment"). However, if the jurisdiction does not receive federal preclearance from either the Attorney General or a three-judge panel of this Court, the change to its voting practice or procedure may not be implemented.
Section 4(b) establishes the formula that determines which jurisdictions are subject to Section 5's preclearance requirements (and the other temporary provisions of the Act). As originally enacted, a jurisdiction was "covered" under Section 4(b) if it maintained a voting test or device as of November 1, 1964, and had less than 50% voter registration or turnout in the 1964 presidential election. See 1965 Act § 4(b).*fn3 Congress found that the combined presence of one of these "tests or devices" and low voter registration or turnout in a particular jurisdiction made it "a strong probability that low registration and voting are a result of racial discrimination in the use of such tests." H.R. Rep. No. 89-439, at 2444. The jurisdictions originally covered by this formula were Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia.
See 28 C.F.R. pt. 51 app. Thirty-nine counties in North Carolina and one county in Arizona also qualified for coverage as separately designated political subdivisions. Id.
It was no coincidence that the six states originally covered in their entirety by Section 4(b) -- and therefore subject to preclearance under Section 5 -- were those southern states with the worst historical records of racial discrimination in voting. The drafters of the Act purposefully designed its coverage formula "to pick up the core Southern states that had been bastions of Jim Crow." Introduction to the Expiring Provisions 221 (statement of Samuel Issacharoff). As one scholar has explained, "those who wrote the legislation knew the states they wanted to 'cover' and, by a process of trial and error, determined the participation level that would single them out." 1 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. 68 (Oct. 25, 2005) ("1 History, Scope, & Purpose") (Abigail Thernstrom, Whose Votes Count? Affirmative Action and Minority Rights (Harvard University Press 1987)). The reverse-engineered, percentage-based "trigger" for coverage under the Act was, in other words, "a formally neutral device for capturing a more historically based truth." The Continuing Need for Section 5 Pre-Clearance, Hearing before the S. Comm. on the Judiciary, 109th Cong. 99 (May 16, 2006) ("Continuing Need") (responses of Pamela S. Karlan to questions submitted by Senators Leahy, Kennedy, Kohl, Cornyn, and Coburn) ("Karlan Responses").
But Congress also recognized the potential that Section 4(b)'s coverage formula would be over- or under-inclusive, and hence created mechanisms whereby jurisdictions could "bail out" of or "bail-in" to Section 5's requirements. See 1965 Act § 4(a), § 3(c). In order to successfully "bail out" under the version of Section 4(a) now in effect, a jurisdiction must obtain a declaratory judgment from a three-judge court confirming that "for the previous ten years it has not used any forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations." Nw. Austin II, 129 S. Ct. at 2509. The jurisdiction must also show "that it has 'engaged in constructive efforts to eliminate intimidation and harassment of voters,' and similar measures." Id. (quoting 42 U.S.C. § 1973b(a)(1)(A)-(F)). By the same token, a court can require a jurisdiction to "bail-in" to the requirements of Section 5 if it finds that "violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision." 42 U.S.C. § 1973a(c). Specifically, a court presiding over a voting discrimination suit against a state or political subdivision may retain jurisdiction over the suit "for such a period as it may deem appropriate," and may, during that time, require that the defendant-jurisdiction be subject to preclearance. Id.
Shortly after Congress enacted the Voting Rights Act, South Carolina brought suit challenging the constitutionality of Section 5's preclearance requirement, Section 4(b)'s coverage formula, and several of the Act's other temporary provisions, on the grounds that they exceeded Congress's Fifteenth Amendment enforcement authority and violated "[t]he doctrine of the equality of the states." Katzenbach, 383 U.S. at 323, 328. Rejecting these arguments, the Supreme Court explained that "[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 325. Although recognizing that Section 5 "may have been an uncommon exercise of congressional power," the Court noted that "exceptional conditions can justify legislative measures not otherwise appropriate." Id. at 334. With respect to the coverage formula in Section 4(b), the Court found that Congress had considered "reliable evidence of actual voting discrimination in a great majority of the States . . . affected by the . . . Act," and had created a formula that was "relevant to the problem of voting discrimination." Id. at 329. "No more was required," the Court said, "to justify the application to these areas of Congress' express powers under the Fifteenth Amendment." Id. at 330.
Although Section 5 was originally intended to be in effect for only five years, Congress has reauthorized Section 5 on four occasions -- first in 1970 (for five years), then in 1975 (for seven years), again in 1982 (for 25 years), and most recently in 2006 (for 25 years). See Nw. Austin II, 129 S. Ct. at 2510. When Section 5 was reauthorized in 1970 and again in 1975, Section 4(b)'s coverage formula was amended each time, first to include (1) jurisdictions that maintained a voting test or device as of November 1, 1968, and had less than 50% voter registration or turnout in the 1968 presidential election; and then to add (2) jurisdictions that maintained a voting test or device as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election. See Pub. L. No. 91-285, 84 Stat. 314, 315 (1970) ("1970 Amendments"); Pub. L. No. 94-73, 89 Stat. 400, 401 (1975) ("1975 Amendments"). In the 1975 Amendments, Congress also added Section 4(f) to the Act, which bars voting discrimination against language minorities and expands the definition of "test or device" in Section 4 to include the provision of English-only voting materials in jurisdictions where more than 5% of the voting-age population are members of a single language minority. See 1975 Amendments § 203, 89 Stat. at 401-02 (codified as amended at 42 U.S.C. § 1973b(f)).
Five years after the enactment of the 1975 Amendments, the Supreme Court was again confronted with a challenge to the constitutionality of Section 5, and confirmed that the provision's reauthorization constituted a permissible exercise of Congress's Fifteenth Amendment enforcement authority. See City of Rome, 446 U.S. at 182. Just as Shelby County has argued here with respect to the 2006 reauthorization of Section 5, Rome, Georgia, argued there that "even if the Act and its preclearance requirement were appropriate means of enforcing the Fifteenth Amendment in 1965, they had outlived their usefulness by 1975, when Congress extended the Act for another seven years." 446 U.S. at 180. The Supreme Court, however, declined Rome's "invitation to overrule Congress' judgment that the 1975 extension was warranted." Id. Acknowledging the significant gains that had been made in minority political participation since 1965, the Court nonetheless expressed concern that "'[a]s registration and voting of minority citizens increases [sic], other measures may be resorted to which would dilute increasing minority voting strength.'" Id. at 181 (quoting H.R. Rep. No. 94-196, at 10-11 (1975)). The Court emphasized that the Voting Rights Act had been enacted to remedy nearly a century of racial discrimination in voting, and that the 1975 extension of the Act's temporary provisions occurred just ten years after the Act's passage. Id. at 182. Thus viewed, the Court found "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" to be both "unsurprising and unassailable." Id.
Two years after City of Rome, Congress reauthorized Section 4(b) and Section 5 a third time, and in so doing liberalized the procedures for bailout in several significant ways. Prior to 1982, only covered states (such as Alabama) or separately-covered political subdivisions (such as individual North Carolina counties) were eligible to seek bailout -- even though all political subdivisions within covered states were required to seek preclearance for their proposed electoral changes. See Nw. Mun. Util. Dist. No. One v. Holder, 573 F. Supp. 2d 221, 227-28 (D.D.C. 2008) ("Nw. Austin I"), rev'd and remanded, Nw. Austin II, 129 S. Ct. 2504 (2009). After the 1982 Amendments, political subdivisions within covered states (such as, for example, Shelby County) could themselves petition for bailout. See Pub. L. No. 97-205 § 2(b)(2), 96 Stat. 131, 131 ("1982 Amendments") (codified as amended at 42 U.S.C. § 1973b(a)(1)). Moreover, the 1982 Amendments changed the substantive criteria for bailout so that jurisdictions with "clean" voting rights records over the previous ten years were bailout-eligible; under prior versions of the Act, there had been no such "bailout opportunity for jurisdictions that eliminated discriminatory voting tests and practices that [had been] used at the time of initial coverage." Nw. Austin I, 573 F. Supp. 2d at 228 (internal quotation marks and citation omitted) (brackets in original). In this manner, the 1982 Amendments created an incentive for "those jurisdictions with post-1965 histories of discrimination . . . to improve their voting rights records." Id.
The 1982 Amendments also extended the Act's temporary provisions for the longest period of time to date. Whereas the 1970 and 1975 Amendments had extended the Act's temporary provisions for only five and seven years, respectively, the 1982 Amendments extended Section 5 and Section 4(b) for a full 25 years. See Nw. Austin II, 129 S. Ct. at 2510. The 1982 Amendments did not, however, change the coverage formula in Section 4(b). See 1982 Amendments, 96 Stat. at 131-133.
II. The 2006 Reauthorization of Section 5 and Section 4(b)
As a result of the 25 year extension imposed by the 1982 Amendments, Section 5 and the Act's other temporary provisions were set to expire in 2007. Hence, in the fall of 2005, the House Committee on the Judiciary began to examine "the effectiveness of the temporary provisions of the VRA over the last 25 years" in order to determine whether another renewal of the Act's temporary provisions was warranted. See H.R. Rep. No. 109-478, at 5. The result was "one of the most extensive legislative records in the Committee on the Judiciary's history." Id.
From October 2005 through May 2006, the House Judiciary Committee held ten oversight hearings and two legislative hearings before the Subcommittee on the Constitution, at which it heard from 46 witnesses and assessed over 12,000 pages of testimony, documentary evidence, and statistical analyses. Id. The Subcommittee on the Constitution received and incorporated into the legislative record lengthy reports from several civil rights organizations and voting rights scholars, including: (1) a report by the ACLU's Voting Rights Project, assessing 293 cases involving allegations of voting discrimination since 1982, see 1 Evidence of Continued Need 378-1270 (Laughlin McDonald and Daniel Levitas, The Case for Extending and Amending the Voting Rights Act: Voting Rights Act Litigation, 1982-2006 (Mar. 2006)) (hereinafter, "ACLU Report"); (2) a report by the National Commission on the Voting Rights Act, compiling evidence of voting discrimination since 1982 based on testimony gathered at ten field hearings across the country, as well as "governmental, legal, media and scholarly sources," see id. at 121 (Nat'l Comm'n Report); and (3) a study conducted by Professor Ellen Katz and the Voting Rights Initiative of the University of Michigan Law School, which analyzed 323 post-1982 lawsuits that raised claims under Section 2 of the Voting Rights Act, see Impact and Effectiveness 974 (Ellen Katz, Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982 (Nov. 2005)) (hereinafter, "Katz Study").
The Senate Judiciary Committee held nine of its own hearings to discuss the reauthorization of the Act's temporary provisions, at which it, too, received testimony from 46 witnesses, including experienced civil rights litigators, law professors, and Department of Justice attorneys. See S. Rep. No. 109-295, at 2-4, 10 (2006). All told, the legislative record compiled by the two houses is over 15,000 pages in length, and includes "statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination." See id. at 10. On the basis of this extensive record, Congress determined that "40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment." See Pub. L. No. 109-246, § 2(b)(7), 120 Stat. 577, 578 (2006) ("2006 Amendments"). Despite the effectiveness of Section 5 in deterring some attempts at voting discrimination, the House Judiciary Committee found that "instances of discrimination and efforts to discriminate against minority voters continue, thus justifying reauthorization of the VRA's temporary provisions." H.R. Rep. No. 109-478, at 24-25.
As evidence of continued discrimination in voting, Congress pointed to the "hundreds of objections" to voting changes that were interposed by the Attorney General since 1982; the number of voting changes withdrawn from consideration after so-called "more information requests" from the Attorney General; the number of "section 5 enforcement actions undertaken by the Department of Justice in covered jurisdictions since 1982," in which the Department has sought to compel jurisdictions to submit their voting changes for preclearance; the number of requests for preclearance that have been denied by three-judge panels of this Court; the "continued filing of section 2 cases" in covered jurisdictions; the existence of racially polarized voting "in each of the jurisdictions covered by the expiring provisions" of the Act; and "the tens of thousands of Federal observers dispatched to monitor polls" in covered jurisdictions.
See 2006 Amendments § 2(b)(3)-(4), (8), 120 Stat. at 577-78. Such evidence, Congress found, "demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, 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.
Hence, Congress passed H.R. 9 -- entitled the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 -- which reauthorized Section 5 (and the coverage formula in Section 4(b)) for another 25 years. See 2006 Amendments § 4; 42 U.S.C. § 1973b(a)(8). The congressional support for the Act's 2006 reauthorization was even more "overwhelming" than it had been for the Act's passage in 1965. Whereas the 1965 Act passed by a vote of 328 to 74 in the House and 79 to 18 in the Senate, see Katzenbach, 383 U.S. at 309, the 2006 Amendments passed by a vote of 390 to 33 in the House and 98 to 0 in the Senate, see 152 Cong. Rec. H5207 (daily ed. July 13, 2006); 152 Cong. Rec. S8012 (daily ed. July 20, 2006). President George W. Bush then signed the bill into law on July 27, 2006. See 120 Stat. at 581.
In addition to extending the operation of Section 5, the 2006 Amendments made two substantive changes to the Act's preclearance standard. First, Congress clarified its intent with respect to the meaning of the word "purpose" in Section 5 in response to the Supreme Court's decision in Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000) ("Bossier II"). Section 5, by its terms, only allows a voting change to be precleared if 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." See 42 U.S.C. § 1973c(a). Prior to Bossier II, this provision was interpreted to bar preclearance of voting changes that either (1) were enacted with a discriminatory purpose; or (2) had a discriminatory, retrogressive effect -- i.e., changes that worsened the position of minority voters relative to the status quo. See Bossier II, 528 U.S. at 324 (explaining that a redistricting plan only has a prohibited discriminatory "effect" under Section 5 if it is retrogressive); Beer, 425 U.S. at 141 (noting that "the purpose of s[section] 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise"). In Bossier II, however, the Supreme Court -- for the first time -- held that the "purpose" prong of Section 5 only prohibits electoral changes that are enacted with a discriminatory and retrogressive purpose. See 528 U.S. at 341. In other words, after Bossier II, a redistricting plan that was passed for purely discriminatory reasons (such as to purposefully avoid the creation of a new majority-minority district), but that was not intended to make minority voters any worse off than they had been under the pre-existing plan (which, say, had no majority-minority districts), would not run afoul of Section 5's "purpose" prong. See id. (holding that Section 5 "does not prohibit preclearance of a redistricting plan with a discriminatory but nonretrogressive purpose").
Bossier II thus had the effect of reading the "purpose" prong "almost entirely out of Section 5." See Voting Rights Act: Section 5 -- Preclearance Standards, Hearing before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 109th Cong. 12 (Nov. 1, 2005) (hereinafter, "Preclearance Standards") (prepared statement of Mark A. Posner) (hereinafter, "Posner Prepared Statement"). As was the case prior to Bossier II, if a jurisdiction enacted an electoral change that reduced the ability of minority voters to elect candidates of their choice, the change would be denied preclearance under Section 5's "effects" prong (because it would have a retrogressive effect). Under Bossier II, then, the "purpose" prong would only serve as an independent bar to discriminatory voting changes where a jurisdiction "intend[ed] to cause retrogression, but then, somehow, messe[d] up and enact[ed] a voting change that [did] not actually cause retrogression to occur (the so-called 'incompetent retrogressor')." Id.
In 2006, the House Judiciary Committee explained that Bossier II's limitation of the "purpose" prong had been inconsistent with Congress's intent that Section 5 prevent not only purposefully retrogressive discriminatory voting changes, but also those "[v]oting changes that 'purposefully' keep minority groups 'in their place.'" See H.R. Rep. No. 109-478, at 68. Accordingly, as part of the 2006 Amendments, Congress restored the pre-Bossier II "purpose" standard by adding a provision to the statute that defined "purpose" in Section 5 to mean "any discriminatory purpose." See 2006 Amendments § 5(c), 120 Stat. at 581; 42 U.S.C. § 1973c(c) (emphasis added).
In a similar vein, Congress also responded to the Supreme Court's decision in Georgia v. Ashcroft, 539 U.S. 461 (2003), which had altered the pre-existing standard for determining whether a voting change had a prohibited retrogressive effect under Section 5's "effects" prong. Prior to Georgia v. Ashcroft, the standard for assessing whether an electoral change violated the Section 5 "effects" test was "whether the ability of minority groups to participate in the political process and to elect their choices to office is . . . diminished . . . by the change affecting voting." Beer, 425 U.S. at 141 (quoting H.R. Rep. No. 94-196, at 10). In Georgia v. Ashcroft, however, the Court endorsed a less rigid, "totality of the circumstances" analysis for examining retrogressive effects, explaining that "any assessment of the retrogression of a minority group's effective exercise of the electoral franchise depends on an examination of all the relevant circumstances, such as the ability of minority voters to elect their candidate of choice, the extent of the minority group's opportunity to participate in the political process, and the feasibility of creating a nonretrogressive plan." 539 U.S. at 479. In reauthorizing the Act in 2006, Congress expressed concern that the Georgia v. Ashcroft framework had introduced "substantial uncertainty" into the administration of a statute that was "specifically intended to block persistent and shifting efforts to limit the effectiveness of minority political participation." See H.R. Rep. No. 109-478, at 70 (internal quotation marks and citation omitted). Hence, in an attempt to restore the simpler, "ability to elect" analysis articulated in Beer, see id. at 71, Congress added new language to the Act, stating that all voting changes that diminish the ability of minorities "to elect their preferred candidates of choice" should be denied preclearance under Section 5. See 2006 Amendments § 5(b), 120 Stat. at 581; 42 U.S.C. § 1973c(b).
For present purposes, even more significant than the substantive changes that Congress made in 2006 to Section 5's preclearance standard were the proposed changes that Congress considered -- but ultimately, did not make -- to Section 4(b)'s coverage formula. During the 2006 reauthorization hearings, there was extensive discussion of the potential need to revise the Act's coverage formula to take account of changed circumstances since 1975, when the formula had last been updated. Several Senators asked members of the academic community whether they believed Section 4(b)'s "trigger" should be based on voter registration and turnout data from the 2000 and 2004 presidential elections, rather than data from the 1964, 1968, and 1972 elections. See, e.g., Continuing Need 48-49 (responses of Anita S. Earls to questions submitted by Senators Coburn, Cornyn, Leahy, and Kohl) ("Earls Responses"); id. at 76, 85-86 (responses of Ronald Keith Gaddie to questions submitted by Senators Kohl, Cornyn, and Coburn) ("Gaddie Responses"); id. at 99-100, 103-04 (Karlan Responses); id. at 110-12 (responses of Richard H. Pildes to questions submitted by Senators Specter, Cornyn, Coburn, and Kohl) ("Pildes Responses"); Introduction to Expiring Provisions 36, 38 (responses of Richard L. Hasen to questions submitted by Senators Specter, Cornyn, and Sessions) ("Hasen Responses"); id. at 76 (responses of Samuel Issacharoff to questions submitted by Senators Specter, Sessions, and Cornyn) ("Issacharoff Responses").
Many voting rights scholars expressed the view that some sort of "updated trigger is called for." See, e.g., Continuing Need 85 (Gaddie Responses); Introduction to Expiring Provisions 36 (Hasen Responses) (explaining that "Congress should update the coverage formula based on data indicating where intentional state discrimination in voting on the basis of race is now a problem or likely to be one in the near future"); Introduction to Expiring Provisions 13 (statement of Samuel Issacharoff) (noting that a trigger based on "voter turnout figures from 1964 . . . risks appearing constitutionally antiquated by the proposed next expiration date of 2032"). But almost all agreed that updating the formula on the basis of voter turnout and registration data from the 2000 and 2004 presidential elections would be ill-advised. As one law professor explained, such a proposal "rest[s] on a fundamental misperception of the triggers," since Congress "did not pick the 1964, 1968, or 1972 elections as triggers because it thought something distinctive happened in any of those elections." See Continuing Need 99 (Karlan Responses). Rather, the use of election data from those years -- in conjunction with the presence of a prohibited voting test or device -- had served only as a proxy for identifying those "jurisdictions that had a long, open, and notorious history of disenfranchising minority citizens and diluting their voting strength whenever they did manage to register and cast ballots." Id.; see also Continuing Need 110 (Pildes Responses). For this reason, most scholars who testified before Congress were skeptical as to whether "tinkering with the coverage dates is necessarily the best way to make the Act more current." Introduction to Expiring Provisions 76 (Issacharoff Responses); see also Continuing Need 110 (Pildes Responses) (stating that "[m]echanically updating the coverage formula in this way would . . . not tie coverage appropriately to where problems are occurring today").
Nevertheless, the only amendment that was ultimately offered as a possible means of making Section 4(b)'s coverage formula more "current" proposed to do just that. Specifically, Representative Charlie Norwood of Georgia introduced an amendment that would have created a "rolling test" for coverage based on voter turnout in the three most recent presidential elections. See H. R. Rep. No. 109-554, at 2 (2006). Under the Norwood Amendment, a jurisdiction would only be subject to preclearance if it had "a discriminatory test in place or voter turnout of less than 50% in any of the three most recent presidential elections." See id.
The House's reaction to the Norwood Amendment was overwhelmingly negative. Representative James Sensenbrenner, Chairman of the House Judiciary Committee, decried the Amendment, claiming that it "not only guts the bill, but turns the Voting Rights Act into a farce." See 152 Cong. Rec. H5181 (daily ed. July 13, 2006). Although over 1,000 counties still would have been subject to preclearance under the Norwood Amendment's proposed formula, Hawaii would have been the only state covered in its entirety -- even though Hawaii has no discernible history of voting discrimination. See 152 Cong. Rec. H5179-81. Opponents of the Amendment condemned such results as evidence of the Amendment's "absurdity," and expressed concern that by severing Section 4(b)'s "connection to jurisdictions with proven discriminatory histories," the Amendment would place Section 5 in constitutional jeopardy. See 152 Cong. Rec. H5181.
Ultimately, the Norwood Amendment was defeated, and the existing coverage formula in Section 4(b) remained intact. See 152 Cong. Rec. H5204; see also James Thomas Tucker, The Politics of Persuasion: Passage of the Voting Rights Act Reauthorization Act of 2006, 33 J. LEGIS. 205, 254-55 (2007) (describing the debate over the Norwood Amendment). Under that formula, which remains in existence today, a jurisdiction is subject to preclearance if it maintained a voting test or device in 1964, 1968, or 1972, and had voter turnout or registration below 50% in that year's presidential election. See 42 U.S.C. § 1973b(b). Currently, there are 16 states covered in whole or in part by Section 4(b), and therefore subject to preclearance under Section 5. See 28 C.F.R. pt. 51, app. Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia are covered in their entirety, while portions of California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota are also covered. Id.
Shortly after the 2006 Amendments became effective, a Texas municipal utility district brought suit, seeking to bail out of the Act's requirements or, in the alternative, to challenge Section 5 on its face as "an unconstitutional overextension of Congress's enforcement power to remedy past violations of the Fifteenth Amendment." See Nw. Austin I, 573 F. Supp. 2d at 230 (internal quotation marks and citation omitted). Because the plaintiff-district sought a declaratory judgment that it was eligible for bailout, a three-judge panel of this Court was convened to hear the case. See id. (citing 42 U.S.C. § 1973b(a)(5)). The court first concluded that the district was not a "political subdivision" under Section 14(c)(2) of the Act, and thus could not petition for bailout pursuant to Section 4(a), which only authorizes states and "political subdivisions" to seek bailout. See id. at 230-35; see also § 1973b(a)(1).
The court then proceeded to address the merits of the plaintiff's facial constitutional challenge to the 2006 reauthorization of Section 5. Nw. Austin I, 573 F. Supp. 2d at 235-79. The court began by identifying the types of evidence of voting discrimination upon which Congress had relied in deciding to reauthorize Section 5 in 2006, which included evidence of (1) racial disparities in voter registration and turnout; (2) the number of minority elected officials; (3) objections to proposed voting changes under Section 5; (4) "more information requests" by the Attorney General in response to Section 5 preclearance submissions; (5) judicial preclearance suits brought by covered jurisdictions; (6) Section 5 enforcement actions brought by the Attorney General; (7) Section 2 litigation; (8) the dispatch of federal election observers; (9) racially polarized voting; and (10) Section 5's deterrent effect. Id. at 247. In a lengthy opinion replete with citations to the legislative record, the court analyzed each of these categories of evidence to determine whether there was sufficient proof of "contemporary discrimination in voting to justify Congress's decision to subject covered jurisdictions to section 5 preclearance for another twenty-five years." Id. at 265. Concluding that the legislative record did, in fact, contain "extensive contemporary evidence of intentional discrimination," id. at 266, the court decided there was "no basis for overturning Congress's judgment that preclearance - 'a vital prophylactic tool' -remains necessary," id. at279 (quoting H.R. Rep. No. 109-478, at 21).
On appeal, however, the Supreme Court reversed and remanded. In a decision that has since been criticized by some as "a questionable application of the doctrine of 'constitutional avoidance,'" see Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 SUP. CT. REV. 181 (2009); see also Ellen Katz, From Bush v. Gore to NAMUDNO:
A Response to Professor Amar, 61 FLA. L. REV. 991, 992-93 (2009) (describing the Court's "statutory construction" of the bailout provision in Nw. Austin II as "contrived"), Justice Roberts, writing for an eight-justice majority, sidestepped the "big question" of Section 5's constitutionality by instead resolving the case on narrower, statutory grounds, see Nw. Austin II, 129 S. Ct. at 2508. Specifically, the Court found that the plaintiff-district qualified as a "political subdivision" eligible to petition for bailout -- even though it did not register voters and was therefore not a political subdivision as that term is defined in Section 14(c)(2) of the Act. See 42 U.S.C. § 1973l(c)(2) (defining "political subdivision" to include "any county or parish" or "any other subdivision of a State which conducts registration for voting").
According to the Court, "the statutory definition of 'political subdivision' in § 14(c)(2) does not apply to every use of the term 'political subdivision' in the Act." Nw. Austin II, 129 S. Ct. at 2515. Rather, the Court explained, the phrase "political subdivision" in Section 4(a) has a "broader" meaning than that set forth in Section 14(c)(2), and hence "all political subdivisions -not only those described in § 14(c)(2) - are eligible to file a bailout suit" under Section 4(a). Id. at 2515-17 (emphasis added). As a political subdivision of Texas "in the ordinary sense of the term," the plaintiff-district was thus eligible to seek bailout. Id. at 2513. And because the district had framed its constitutional challenge to the 2006 reauthorization of Section 5 "as being 'in the alternative' to its statutory argument" for bailout, the majority saw no need to resolve the merits of the district's constitutional challenge. Id.
But the majority did take the opportunity to voice some concerns about the constitutionality of Section 5 and Section 4(b), and thereby presaged future challenges to Section 5 like that raised here by Shelby County. The Court in Nw. Austin II emphasized the substantial "federalism costs" imposed by Section 5, as well as the "dramatic improvements" in minority voter turnout and registration since the Act's passage. Id. at 2511. "Things have changed in the South," the Court wrote, explaining that minorities now register and vote at rates that "approach parity" with those of non-minorities, and that minority candidates "hold office at unprecedented levels." Id. The Court conceded that these "improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success," but made clear that "[p]ast success alone . . . is not adequate justification to retain the preclearance requirements." Id.
The Court also raised concern about the continued constitutionality of the Act's coverage formula, noting that it is "based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions." Id. at 2512. The Court cited the fact that the "racial gap in voter registration and turnout is lower in the States originally covered by § 5 than it is nationwide." Id. Although the Court did not specify the precise nature of the differences between covered and non-covered jurisdictions that would be constitutionally necessary to justify Section 5's continued selective application, it did state that "a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." Id. at 2512.
After identifying "serious constitutional questions" raised by the Act's coverage formula and preclearance requirement, however, the majority refrained from answering them. Id. at 2513. But Justice Thomas did not. Writing separately as the lone dissenter, he explained that he would have "decided the constitutional issue presented" and concluded "that the lack of current evidence of intentional discrimination with respect to voting renders § 5 unconstitutional." Id. at 2517, 2519 (Thomas, J., concurring in judgment in part, dissenting in part). According to Justice Thomas, "the constitutionality of § 5 has always depended on the proven existence of intentional discrimination so extensive that elimination of it through case-by-case enforcement would be impossible." Id. at 2524. He went on to explain that this kind of extensive intentional discrimination in voting -- which led the Court to uphold the constitutionality of Section 5 on prior occasions -- "no longer exists," citing the high minority voter registration rates in states such as Alabama, Louisiana, and Mississippi. Id. at 2525. Justice Thomas dismissed evidence of the so-called "second generation barriers" to voting upon which Congress had relied, noting that evidence of Section 5 enforcement actions, Section 2 suits, and federal observer coverage "bears no resemblance to the record initially supporting § 5, and is plainly insufficient to sustain such an extraordinary remedy." Id. at 2526. With respect to evidence of intentional voting discrimination contained in the 2006 legislative record and cited by the three-judge court, Justice Thomas found that these "discrete and isolated incidents" fell short of a "coordinated and unrelenting campaign to deny an entire race access to the ballot." Id. "Perfect compliance with the Fifteenth Amendment's substantive command is not now - nor has it ever been - the yardstick for determining whether Congress has the power to employ broad prophylactic legislation to enforce that Amendment," he explained. Id.
IV. Shelby County, Alabama
Echoing the arguments of Justice Thomas, Shelby County brought this suit on April 27, 2010, asserting that "it is no longer constitutionally justifiable for Congress to arbitrarily impose on Shelby County and other covered jurisdictions disfavored treatment by forcing them to justify all voting changes to federal officials in Washington, D.C. for another twenty five years." See Compl. ¶ 35. Shelby County's history under the Voting Rights Act is extensive and forms a relevant backdrop to this case. As a political subdivision of Alabama, Shelby County has been subject to preclearance since 1965, based on the Attorney General's determination that Alabama used a prohibited voting test or device on November 1, 1964, and had voter turnout of less than 50% in the 1964 presidential election. See 28 C.F.R. pt. 51 app.; 30 Fed. Reg. 9897 (Aug. 7, 1965); see also 42 U.S.C. § 1973b, § 1973c, § 1973l(c)(2); Compl. ¶¶ 28-29. From 1965 to the filing of this suit, the Department of Justice has received at least 682 preclearance submissions from Shelby County and jurisdictions located wholly or partially within Shelby County.
See Def.'s Mot. for Summ. J. ("Def.'s Mot.") [Docket Entry 54], Ex. 4, Decl. of Robert S. Berman ("Berman Decl.") ¶ 4. Shelby County itself has submitted at least 69 proposed voting changes to the Attorney General for preclearance. Id. ¶ 5.
Since 1965, the Department has lodged objections to five proposed voting changes submitted by jurisdictions located wholly or partially within Shelby County. Id. ¶ 8. Shelby County was also a defendant in the so-called Dillard litigation in the 1980s, in which black residents of Alabama challenged the at-large system used to elect Alabama county commissioners as a violation of Section 2 of the Voting Rights Act. See Dillard v. Crenshaw Cnty., 640 F. Supp. 1347, 1352-54 (M.D. Ala. 1986); see also Dillard v. Baldwin Cnty. Bd. of Educ., 686 F. Supp. 1459, 1461 (M.D. Ala. 1988) (reviewing history of Dillard litigation); Dillard v. Crenshaw Cnty., 748 F. Supp. 819, 821-23 (M.D. Ala. 1990) (describing Shelby County's involvement in Dillard). Although Shelby County was not one of the original nine defendants in Dillard, see Dillard, 640 F. Supp. at 1352, the plaintiffs in Dillard eventually raised claims against a total of 183 Alabama cities, counties, and school boards that employed at-large methods of election, including Shelby County, see Dillard, 686 F. Supp. at 1461.
In the original Dillard lawsuit, the court concluded that the Alabama legislature had "engaged in a pattern and practice of using at-large election systems as an instrument for race discrimination." 640 F. Supp. at 1361. The court explained that the challenged at-large electoral systems had been created against the backdrop of Alabama's "unrelenting historical agenda, spanning from the late 1800's to the 1980's, to keep its black citizens economically, socially, and politically downtrodden, from the cradle to the grave." Id. at 1357. Moreover, the court noted, the Alabama legislature had "consistently enacted at-large systems for local governments during periods when there was a substantial threat of black participation in the political process." Id. at 1361. When viewed in light of the state's "undisputed history of racial discrimination," it became clear that the creation of at-large methods of election -- which did, in fact, have an "adverse racial impact" -- "was not adventitious but rather racially inspired." Id. Hence, the court found that preliminary injunctive relief with respect to the counties then defending their at-large election systems was warranted. Id. at 1373.
Despite the adverse judgment against the other Alabama counties with at-large electoral systems in place, Shelby County continued to deny that its at-large method for electing county commissioners violated Section 2, and the related case against it proceeded to trial. See Dillard, 748 F. Supp. at 822. While the case was under submission, however, Shelby County entered into a consent decree with the plaintiffs, under which it agreed to change its at-large electoral system to a "single-member district scheme" with one majority-black district. Id.
Most recently, on August 25, 2008, the Attorney General objected to a redistricting plan and 177 annexations submitted by the city of Calera, located within Shelby County. See Berman Decl. ¶¶ 9-10; id., Att. A. Calera's redistricting plan and annexations would have eliminated the city's sole majority-black district, which had been created pursuant to the consent decree in Dillard, and which had elected an African-American councilman for the past 20 years. See Berman Decl., Att. A. In its preclearance submission to the Attorney General, Calera conceded that it had, in fact, already adopted the 177 annexations without receiving advance preclearance for them. See id.; see also Berman Decl. ¶ 9. After the Attorney General lodged an objection to the annexations and the city's 2008 redistricting plan, Calera nonetheless proceeded to conduct elections based on these unprecleared voting changes. See Berman Decl. ¶ 11; id., Att. B ("Calera Compl.") ¶ 18.; id., Att. C ("Calera Consent Decree") at 3. The elections held under the objected-to plan and annexations resulted in the defeat of the African-American incumbent councilman. See id., Att. D.
The Attorney General responded by bringing a Section 5 enforcement action, seeking to prohibit Calera from certifying the results of its elections "based on the district boundaries and electorate to which the Attorney General ha[d] interposed a timely objection unless and until preclearance under Section 5 . . . is obtained." Calera Compl. at 7. The case was temporarily resolved through a consent decree, and the Attorney General subsequently withdrew his objection to the 177 annexations. See Calera Consent Decree; see also Berman Decl. ¶ 15; id., Att. F. The Attorney General did not, however, withdraw his objection to the 2008 redistricting plan. See Berman Decl. ¶ 15; id., Att. F.
Because of the Attorney General's objection to Calera's proposed voting changes, Shelby County argues that it is not eligible for bailout. Compl. ¶ 34(b) (citing 42 U.S.C. § 1973b(a)(1)(E)).*fn4 As a result of its alleged ineligibility for bailout and the 2006 reauthorization of Section 5, Shelby County claims that it now "will have to regularly seek preclearance in the near future" -- a process that, historically, has required the expenditure of "significant taxpayer dollars, time, and energy." See id. ¶¶ 32-33; Pl.'s Mot. for Summ. J. ("Pl.'s Mot.") [Docket Entry 5], Decl. of Frank C. Ellis, Jr. ("Ellis Decl.") ¶¶ 7-8.
Shelby County does not challenge any specific application of Section 5 to one of its proposed voting changes; rather, it seeks a declaration that Section 5 and Section 4(b) are facially unconstitutional, as well as a permanent injunction prohibiting the Attorney General from enforcing these provisions. See Compl. ¶¶ 1, 44(a)-(b). In Count I, Shelby County alleges that in reauthorizing Section 5 "for another twenty-five years in 2006, Congress lacked the evidence of intentional discrimination that warranted the enactment of the VRA in 1965 and its extensions in 1970, 1975, and 1982." Id. ¶ 38(c). Hence, Shelby County argues, because there is neither "'congruence and proportionality' . . . nor even a 'rational relationship' between the evidence compiled in support of the latest extension of Section 5 and the burdens imposed by that provision . . . Section 5 . . . exceeds Congress's authority under the Fourteenth and Fifteenth Amendments," id. ¶ 38(d) (internal citations omitted), "and, therefore, violates the Tenth Amendment and Article IV of the Constitution," id. ¶ 37. In Count II, Shelby County similarly challenges the constitutionality of the 2006 reauthorization of Section 4(b)'s coverage formula, arguing that "Congress's reliance . . . on voting practices, voter registration data, and presidential election data from 1964, 1968, and 1972 as the trigger for the preclearance obligation of Section 5 is not an 'appropriate' means of enforcing the Fifteenth Amendment." Id. ¶ 42(a). Because "Section 4(b)'s coverage formula is not 'sufficiently related to the problem that it targets,'" Shelby County maintains that Section 4(b), like Section 5, exceeds Congress's Fourteenth and Fifteenth Amendment enforcement authority, and violates the principle of equal sovereignty embodied in the Tenth Amendment and Article IV. Id. ¶ 43(c).
Shortly after filing its complaint, Shelby County filed a motion for summary judgment. Several civil rights groups and Shelby County residents responded by filing motions seeking to intervene as defendants, which the Court granted. See 8/25/10 Order [Docket Entry 29]. Defendant and defendant-intervenors then asked the Court to deny Shelby County's summary judgment motion as premature, or, in the alternative, to grant limited discovery pursuant to Fed. R. Civ. P. 56(f). Denying the request, this Court found that there was no need for discovery on any of the three issues upon which discovery was sought. With respect to the first issue -- Shelby County's standing to sue -- the Court explained that no discovery was warranted since defendant "was unable to articulate any reason why a covered jurisdiction subject to Section 5's preclearance requirement - such as Shelby County - would lack standing to bring this type of action." Shelby Cnty. v. Holder, 270 F.R.D. 16, 18 (D.D.C. 2010). The Court next rejected defendant's contention that discovery was needed to determine whether Shelby County was, in fact, eligible for bailout, since Shelby County did not seek bailout. Id. at 19. Finally, the Court held that there was no need for discovery on Shelby County's constitutional challenge because it was purely facial -- not "as applied" -- and it therefore must "rise or fall on the record that Congress created when it extended [the Voting Rights Act's temporary provisions] in 2006." Id. at 21. Accordingly, the Court set a schedule for the filing of dispositive motions, which generated over 1,000 pages of briefs and exhibits and culminated in a lengthy motions hearing on February 2, 2011.
This Court does not write on a clean slate in assessing plaintiff's facial constitutional challenge to the 2006 reauthorization of Section 5 and Section 4(b). To date, one Supreme Court Justice has declared that he would strike down Section 5 as an unconstitutional exercise of Congress's Fifteenth Amendment enforcement power, see Nw. Austin II, 129 S. Ct. at 2517-27 (Thomas, J., concurring in judgment in part, dissenting in part), while several other Justices have voiced concerns about the continued vitality of the Act's coverage formula, see, e.g., Nw. Austin II Oral Arg. Tr. at 36 (Apr. 29, 2009) (Alito, J., asking, "[w]ouldn't you agree that there is [sic] some oddities in this coverage formula"); id. at 22 (Kennedy, J., inquiring whether there is "anything in the record" addressing whether "these States that are now covered . . . are markedly different from the non-covered jurisdictions"), and about the apparent never-ending nature of the preclearance obligation, which was originally intended to last only through 1970, but which is now scheduled to last through 2032, id. at 32 (Roberts, C.J., stating with respect to Section 5, "at some point it begins to look like the idea is that this is going to go on forever"). At the same time, a three-judge panel of this Court, after undertaking an exhaustive review of the legislative record, concluded that there was sufficient evidence of modern-day, intentional discrimination in voting to justify Congress's 2006 reauthorization of the preclearance obligation on covered jurisdictions for another 25 years. See Nw. Austin I, 571 F. Supp. 2d at 221-83. Keeping all these views in mind, the Court will undertake its own assessment of the legislative record in order to determine whether Congress exceeded its enforcement authority under the Fourteenth and Fifteenth Amendments when it reauthorized Section 5 and Section 4(b) in 2006.
Three threshold issues are presented by this suit: (1) plaintiff's Article III standing; (2) plaintiff's eligibility for bailout; and (3) the facial rather than as-applied nature of plaintiff's claims. These three issues were, to some extent, already addressed in the prior Memorandum Opinion in this case. See Shelby Cnty., 270 F.R.D. at 18-21. Nevertheless, given the "'well-established principle . . . that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,'" Nw. Austin II, 129 S. Ct. at 2513 (quoting Escambia Cnty. v. McMillan, 466 U.S. 48, 51 (1984)), the Court will briefly revisit each of these issues to explain why none provides a valid basis for avoiding the merits of the facial constitutional challenge raised here.
To establish the "irreducible constitutional minimum of standing," a plaintiff must allege
(1) an "injury in fact" that is "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; (2) "a causal connection between the injury and the conduct complained of"; and (3) a likelihood "that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and citations omitted). As a jurisdiction covered by Section 4(b), Shelby County maintains that it must expend "significant taxpayer dollars, time, and energy to meet its obligations under Section 5 of the VRA." Ellis Decl. ¶ 7. Shelby County's expenditure of time and money to ensure compliance with Section 5 constitutes a "concrete and particularized" injury that is caused by the continued operation of the statute, and that would be redressed by a decision declaring Section 5 facially unconstitutional and permanently enjoining its enforcement.
The mere fact that Shelby County does not challenge any specific objection to one of its proposed electoral changes does not serve to render its claims "conjectural or hypothetical" for purposes of Article III. See LaRoque v. Holder, --- F.3d ----, 2011 WL 2652441, at *10 (D.C. Cir. 2011) (noting that a plaintiff need only demonstrate a "'substantial probability' of imminent injury" to establish Article III standing to bring a facial constitutional challenge to Section 5). Because Shelby County is a jurisdiction subject to Section 5, it will be forced to expend resources obtaining preclearance for all of its future electoral changes, absent a decision from this Court granting its requested relief.*fn5 Shelby County therefore has alleged an injury that is both "credible and immediate, and not merely abstract or speculative." See Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997); see also Steffel v. Thompson, 415 U.S. 452, 459 (1974) (permitting plaintiff to challenge the legality of his potential arrest under a criminal trespass statute where the plaintiff alleged threats of prosecution that were neither imaginary nor speculative). Accordingly, Shelby County has standing to pursue its facial constitutional challenges to Section 5 and Section 4(b).
Unlike the Texas municipal utility district in Nw. Austin, Shelby County has not framed its constitutional challenge "as being 'in the alternative' to its statutory argument" for bailout. Nw. Austin II, 129 S. Ct. at 2513. Indeed, Shelby County has expressly chosen not to petition for bailout, based on its determination that such a petition would be futile. See Compl. ¶ 34. Because Shelby County has not sought bailout under Section 4(a), a finding that Shelby County was bailout-eligible would not obviate the need for this Court to assess the merits of Shelby County's constitutional challenge, as was the case in Nw. Austin II. The Supreme Court's finding in Nw. Austin II that the plaintiff-district was eligible for bailout served to "afford [the plaintiff-district] all the relief it s[ought]," see 129 S. Ct. at 2513; here, however, a determination that Shelby County was eligible for bailout would only relieve Shelby County of its preclearance obligation if defendant or this Court could somehow "force Shelby County to accept bailout," which, as defendant correctly concedes, cannot be done. See Shelby Cnty., 270 F.R.D. at 19.*fn6
C. The Facial Nature of Plaintiff's Challenge
Finally, it is important to remember that Shelby County's suit presents only a facial -- and not an as-applied -- challenge to the constitutionality of the 2006 reauthorization of Section 5 and Section 4(b). The "distinction between 'as-applied' and 'facial' challenges is that the former ask only that the reviewing court declare the challenged statute or regulation unconstitutional on the facts of the particular case," Sanjour v. E.P.A., 56 F.3d 85, 92 n.10 (D.C. Cir. 1995), whereas the latter ask the court to conclude that "'no set of circumstances exists under which [the statute] would be valid,' or that the statute lacks any 'plainly legitimate sweep,'" United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (internal citations omitted). When a plaintiff brings both a facial and an as-applied challenge to a statute, "the court must 'determine first whether the law is constitutional as applied to the challenging party's conduct, and then only if the as-applied challenge fails, . . . determine whether it is necessary to consider the facial challenge.'" Heller v. Dist. of Columbia, 698 F. Supp. 2d 179, 188 n.10 (D.D.C. 2010) (internal citations omitted); see also Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485 (1989) (explaining that "for reasons relating both to the proper functioning of courts and to their efficiency, the lawfulness of the particular application of the law should ordinarily be decided first").
Here, however, Shelby County has made clear that it is only seeking to challenge the constitutionality of Section 5 and Section 4(b) on their face, and not as they have been applied to Shelby County in any particular instance. See, e.g., Compl. ¶ 1 (seeking a declaratory judgment that Section 4(b) and Section 5 "are facially unconstitutional") (emphasis added); Pl.'s Mot. at 17 n.2 (describing plaintiff's challenge as facial); Shelby Cnty., 270 F.R.D. at 19 (finding that discovery was "unwarranted" because "Shelby County brings only a facial challenge"). Because Shelby County has chosen not to raise an as-applied challenge -- and indeed, has explicitly waived its right to bring such a challenge, see Shelby Cnty., 270 F.R.D. at 19 -- the Court's consideration of Shelby County's facial challenge is not premature. See Stevens, 130 S. Ct. at 1587 n.3 (rejecting contention that the Court's consideration of a facial constitutional challenge was "premature" where "the constitutional argument [wa]s a general one" and there was no "separate attack on a defined subset of the statute's applications").
The Court must first determine the appropriate standard of review to use in evaluating whether Congress exceeded its enforcement authority under the Fourteenth and Fifteenth Amendments when it reauthorized Section 5 and Section 4(b) in 2006.*fn7 The Attorney General, relying on cases in which the Supreme Court has previously assessed the constitutionality of Section 5, argues that "when Congress is legislatively enforcing the Fifteenth Amendment's prohibition on race discrimination with respect to voting, the Court reviews the appropriateness of that legislation under a deferential rationality standard." See Def.'s Mot. at 12 (citing Katzenbach, 383 U.S. at 324; City of Rome, 446 U.S. at 175-77; Georgia v. United States, 411 U.S. 526, 535 (1973); Lopez, 525 U.S. at 282-85). Shelby County, on the other hand, urges this Court to apply the "congruence and proportionality" framework first articulated by the Supreme Court in City of Boerne v. Flores, 521 U.S. at 520, to assess legislation enacted pursuant to § 5 of the Fourteenth Amendment, asserting that Boerne "applies just the same in Fifteenth Amendment cases" because "[t]he enforcement clauses of the Fourteenth and Fifteenth Amendments are co-extensive." See Pl.'s Mot. at 19; see also Pl.'s Reply in Supp. of Pl.'s Mot. for Summ. J. ("Pl.'s Reply") at 2 (explaining that "[t]he Supreme Court has made clear that all enforcement legislation is subject to congruence and proportionality review, and it has specifically relied on the voting rights cases in adopting and applying this test").
The parties in Nw. Austin engaged in the same dispute regarding the proper standard of review to apply in assessing the constitutionality of Section 5. See Nw. Austin II, 129 S. Ct. at 2512. Although the Supreme Court ultimately declined to resolve the issue, see id.; but see id. at 2524-25 (Thomas, J., concurring in judgment in part, dissenting in part) (suggesting that Boerne provides the framework for reviewing the constitutionality of Section 5), the ...