No. 06-1384
UUNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Decided May 30, 2008
Opinion for the Court filed by Circuit Judge T ATEL .
OPINION
T ATEL , 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.