Before the Supreme Court’s 2013 ruling in Shelby County v. Holder, Section 5 of the Voting Rights Act prohibited government entities in certain states that have a history of voting discrimination from changing any election laws or rules without “preclearance” from the Justice Department or the U.S. District Court for the District of Columbia. All jurisdictions in Texas were covered. However, the Act allowed certain jurisdictions to “bail out” of the preclearance requirement if they showed a history of non-discrimination and affirmative steps to improve minority voting opportunities.
A small utility district in Austin, Texas, whose governing board is elected by the community it serves, filed suit in 2006, alleging that it had never discriminated against minority voters. Accordingly, it sought permission to bail out of preclearance; in the alternative, the utility district sought a ruling that Section 5 is unconstitutional as applied to it. We successfully moved to intervene to defend the constitutionality of Section 5 on behalf of some racial and linguistic minority residents of the utility district.
In May 2008 a special three-judge district court ruled that the utility district was ineligible to bail out because it was not a “political subdivision” under the statute. On the constitutional issue, the court held that “given the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions, Congress’s recent decision to extend Section 5 for another twenty-five years was rational and therefore constitutional.” Alternatively, even if (as the plaintiff argued) a stricter standard applies, Section 5 is a “congruent and proportional response to the continuing problem of racial discrimination in voting.”
The utility district appealed, and in June 2009 the Supreme Court ruled (8 to 1) that it was indeed eligible to seek to “bail out” of coverage under Section 5, and remanded the case to the district court for the plaintiff to pursue that statutory remedy. The Court therefore did not reach the constitutional issue.
On remand, the parties filed a proposed Consent Decree under which the utility district would be allowed to bail out and its challenge to the constitutionality of Section 5 would be dismissed without prejudice. The three-judge court entered that decree in November 2009.
