NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT NUMBER ONE v. HOLDER, ATTORNEY GENERAL, et al.

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Syllabus
NORTHWEST AUSTIN MUNICIPAL UTILITY
DISTRICT NUMBER ONE v. HOLDER,
ATTORNEY GENERAL, et al.
appeal from the united states district court for the
district of columbia
No. 08–322. Argued April 29, 2009—Decided June 22, 2009
The appellant is a small utility district with an elected board. Because it
is located in Texas, it is required by § 5 of the Voting Rights Act of 1965
(Act) to seek federal preclearance before it can change anything about
its elections, even though there is no evidence it has ever discriminated
on the basis of race in those elections. The district filed suit seeking
relief under the “bailout” provision in § 4(a) of the Act, which allows a
“political subdivision” to be released from the preclearance require
ments if certain conditions are met. The district argued in the alterna
tive that, if § 5 were interpreted to render it ineligible for bailout, § 5
was unconstitutional. The Federal District Court rejected both claims.
It concluded that bailout under § 4(a) is available only to counties, par
ishes, and subunits that register voters, not to an entity like the district
that does not register its own voters. It also concluded that a 2006
amendment extending § 5 for 25 years was constitutional.
Held:
1. The historic accomplishments of the Voting Rights Act are undeni
able, but the Act now raises serious constitutional concerns. The pre
clearance requirement represents an intrusion into areas of state and
local responsibility that is otherwise unfamiliar to our federal system.
Some of the conditions that the Court relied upon in upholding this
statutory scheme in South Carolina v. Katzenbach, 383 U. S. 301, and
City of Rome v. United States, 446 U. S. 156, have unquestionably im
proved. Those improvements are no doubt due in significant part to
the Act itself, and stand as a monument to its success, but the Act im
poses current burdens and must be justified by current needs. The
Act also differentiates between the States in ways that may no longer
be justified.
At the same time, the Court recognizes that judging the constitution
ality of an Act of Congress is “the gravest and most delicate duty that
this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142,
147–148 (Holmes, J., concurring). Here the District Court found that
the sizable record compiled by Congress to support extension of § 5 doc

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Syllabus
umented continuing racial discrimination and that § 5 deterred discrimi
natory changes.
The Court will not shrink from its duty “as the bulwark of a limited
Constitution against legislative encroachments,” The Federalist No. 78,
but “[i]t is . . . well-established . . . that normally the Court will not
decide a constitutional question if there is some other ground upon
which to dispose of the case,” Escambia County v. McMillan, 466 U. S.
48, 51. Here, the district also raises a statutory claim that it is eligible
to bail out under §§ 4 and 5, and that claim is sufficient to resolve the
appeal. Pp. 201–206.
2. The Act must be interpreted to permit all political subdivisions,
including the district, to seek to bail out from the preclearance require
ments. It is undisputed that the district is a “political subdivision” in
the ordinary sense, but the Act also provides a narrower definition in
§ 14(c)(2): “ ‘[P]olitical subdivision’ shall mean any county or parish, ex
cept that where registration for voting is not conducted under the su
pervision of a county or parish, the term shall include any other subdivi
sion of a State which conducts registration for voting.” The court
below concluded that the district did not qualify for § 4(a) bailout under
this definition, but specific precedent, the Act’s structure, and underly
ing constitutional concerns compel a broader reading.
This Court has already established that § 14(c)(2)’s definition does not
apply to the term “political subdivision” in § 5’s preclearance provision.
See, e. g., United States v. Sheffield Bd. of Comm’rs, 435 U. S. 110.
Rather, the “definition was intended to operate only for purposes of
determining which political units in nondesignated States may be sepa
rately designated for coverage under § 4(b).” Id., at 128–129. “[O]nce
a State has been [so] designated . . . , [the] definition . . . has no ‘operative
significance in determining [§ 5’s] reach.’ ” Dougherty County Bd. of
Ed. v. White, 439 U. S. 32, 44. In light of these decisions, § 14(c)(2)’s
definition should not constrict the availability of bailout either.
The Government responds that any such argument is foreclosed by
City of Rome. In 1982, however, Congress expressly repudiated City
of Rome. Thus, City of Rome’s logic is no longer applicable. The Gov
ernment’s contention that the district is subject to § 5 under Sheffield
not because it is a “political subdivision” but because it is a “State” is
counterintuitive and similarly untenable after the 1982 amendments.
The Government’s contrary interpretation has helped to render the bail
out provision all but a nullity. Since 1982, only 17 jurisdictions—out of
the more than 12,000 covered political subdivisions—have successfully
bailed out of the Act. It is unlikely that Congress intended the provi
sion to have such limited effect. Pp. 206–211.
573 F. Supp. 2d 221, reversed and remanded.

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Roberts, C. J., delivered the opinion of the Court, in which Stevens,
Scalia, Kennedy, Souter, Ginsburg, Breyer, and Alito, JJ., joined.
Thomas, J., filed an opinion concurring in the judgment in part and dis
senting in part, post, p. 212.
Gregory S. Coleman argued the cause for appellant.
With him on the briefs was Christian J. Ward.
Deputy Solicitor General Katyal argued the cause for the
federal appellee. With him on the brief were then-Acting
Solicitor General Kneedler, Acting Assistant Attorney Gen
eral King, Douglas Hallward-Driemeier, Steven H. Ros
enbaum, Diana K. Flynn, Sarah E. Harrington, and T.
Christian Herren, Jr.
Debo P. Adegbile argued the cause for the intervenor
appellees. With him on the brief for intervenor-appellee
Rodney Louis et al. were John Payton, Jacqueline A. Ber
rien, Ryan P. Haygood, Kristen M. Clarke, Joshua Civin,
Samuel Spital, Kathryn Kolbert, Nina Perales, Jose Garza,
George Korbel, and Judith A. Sanders-Castro. Seth P. Wax
man, Paul R. Q. Wolfson, Jonathan E. Nuechterlein, Ariel
B. Waldman, Rebecca G. Deutsch, Micah S. Myers, Jon M.
Greenbaum, Mark A. Posner, Laughlin McDonald, Steven
R. Shapiro, Michael Kator, Jeremy Wright, Arthur B.
Spitzer, and Angela Ciccolo filed a brief for intervenor
appellee Texas State Conference of NAACP Branches et al.
Renea Hicks filed a brief for appellee Travis County.*
*Briefs of amici curiae urging reversal were filed for the Mountain
States Legal Foundation by J. Scott Detamore; for the Southeastern Legal
Foundation by Shannon Lee Goessling and Bert W. Rein; for Georgia Gov
ernor Sonny Perdue by Anne W. Lewis, Special Attorney General of Geor
gia; and for Dr. Abigail Thernstrom et al. by Michael A. Carvin.
Briefs of amici curiae urging affirmance were filed for the State of
North Carolina et al. by Roy Cooper, Attorney General of North Carolina,
Christopher G. Browning, Jr., Tiare B. Smiley, Alexander McC. Peters,
and Susan K. Nichols, and by the Attorneys General for their respective
States as follows: Terry Goddard of Arizona, Edmund G. Brown, Jr., of
California, James D. Caldwell of Louisiana, Jim Hood of Mississippi, and
Andrew Cuomo of New York; for Alaska Native Voters et al. by James

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196 NORTHWEST AUSTIN MUNICIPAL UTIL. DIST.
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Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court.
The plaintiff in this case is a small utility district raising
a big question—the constitutionality of § 5 of the Voting
Rights Act. The district has an elected board, and is re
quired by § 5 to seek preclearance from federal authorities
in Washington, D. C., before it can change anything about
those elections. This is required even though there has
never been any evidence of racial discrimination in voting in
the district.
Thomas Tucker; for the American Bar Association by H. Thomas Wells,
Jr., and Christopher T. Handman; for the Asian American Legal Defense
and Education Fund et al. by Theodore K. Cheng; for the Brennan Center
for Justice at New York University School of Law by Paul M. Smith,
Marc A. Goldman, Wendy Weiser, and Sidney S. Rosdeitcher; for the Civil
Rights Clinic at Howard University School of Law by Aderson Bellegarde
Franc¸ois; for the Constitutional Accountability Center by Clifford M.
Sloan, Douglas T. Kendall, and Elizabeth B. Wydra; for Former Republi
can Officeholders by Trevor Potter, Tara Malloy, and Paul S. Ryan; for
Jurisdictions That Have Bailed Out Under the Voting Rights Act by J.
Gerald Hebert and George Warren Shanks; for the Leadership Conference
on Civil Rights et al. by Matthew M. Hoffman, Stephen J. Pollak, John
Townsend Rich, and William L. Taylor; for Members of the Texas House
of Representatives by Lynn E. Blais, Michael F. Sturley, and David C.
Frederick; for the Navajo Nation et al. by Marvin S. Cohen and Louis
Denetsosie; for Julius Chambers et al. by William D. Kissinger; for Con
gressman John Conyers, Jr., et al. by Pamela S. Karlan, Jeffrey L. Fisher,
Amy Howe, Kevin K. Russell, and Thomas C. Goldstein; for Nicholas deB.
Katzenbach et al. by Samuel R. Bagenstos; for Congresswoman Barbara
Lee et al. by Juan Cartagena; and for Congressman John Lewis by
Mr. Franc¸ois.
Briefs of amici curiae were filed for the Asian American Justice Center
et al. by Allegra R. Rich, David M. Burns, Taron K. Murakami, Karen
K. Narasaki, and Vincent A. Eng; for the Pacific Legal Foundation et al.
by Sharon L. Browne; for the Scharf-Norton Center for Constitutional
Litigation, Goldwater Institute, by Clint Bolick and Nicholas C. Dranias;
for Nathaniel Persily et al. by Mr. Persily, pro se; and for Bob Riley,
Governor of Alabama, by Corey L. Maze, Solicitor General of Alabama,
and Misty S. Fairbanks, Assistant Attorney General.

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The district filed suit seeking relief from these preclear
ance obligations under the “bailout” provision of the Voting
Rights Act. That provision allows the release of a “political
subdivision” from the preclearance requirements if certain
rigorous conditions are met. The court below denied relief,
concluding that bailout was unavailable to a political subdivi
sion like the utility district that did not register its own vot
ers. The district appealed, arguing that the Act imposes no
such limitation on bailout, and that if it does, the preclear
ance requirements are unconstitutional.
That constitutional question has attracted ardent briefs
from dozens of interested parties, but the importance of the
question does not justify our rushing to decide it. Quite the
contrary: Our usual practice is to avoid the unnecessary reso
lution of constitutional questions. We agree that the dis
trict is eligible under the Act to seek bailout. We therefore
reverse, and do not reach the constitutionality of § 5.
I
A
The Fifteenth Amendment promises that the “right of citi
zens of the United States to vote shall not be denied or
abridged . . . on account of race, color, or previous condition
of servitude.” U. S. Const., Amdt. 15, § 1. In addition to
that self-executing right, the Amendment also gives Con
gress the “power to enforce this article by appropriate legis
lation.” § 2. The first century of congressional enforce
ment of the Amendment, however, can only be regarded as a
failure. Early enforcement Acts were inconsistently applied
and repealed with the rise of Jim Crow. South Carolina v.
Katzenbach, 383 U. S. 301, 310 (1966); A. Keyssar, The Right
to Vote 105–111 (2000). Another series of enforcement stat
utes in the 1950’s and 1960’s depended on individual lawsuits
filed by the Department of Justice. But litigation is slow
and expensive, and the States were creative in “contriving
new rules” to continue violating the Fifteenth Amendment

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“in the face of adverse federal court decrees.” Katzenbach,
supra, at 335; Riley v. Kennedy, 553 U. S. 406, 411 (2008).
Congress responded with the Voting Rights Act. Section
2 of the Act operates nationwide; as it exists today, that pro
vision forbids any “standard, practice, or procedure” that
“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(a). Section 2 is not at issue in this case.
The remainder of the Act constitutes a “scheme of strin
gent remedies aimed at areas where voting discrimina
tion has been most flagrant.” Katzenbach, supra, at 315.
Rather than continuing to depend on case-by-case litigation,
the Act directly pre-empted the most powerful tools of black
disenfranchisement in the covered areas. All literacy tests
and similar voting qualifications were abolished by § 4 of the
Act. Voting Rights Act of 1965, §§ 4(a)–(d), 79 Stat. 438–439.
Although such tests may have been facially neutral, they
were easily manipulated to keep blacks from voting. The
Act also empowered federal examiners to override state de
terminations about who was eligible to vote. §§ 6, 7, 9, 13,
id., at 439–442, 444–445.
These two remedies were bolstered by § 5, which sus
pended all changes in state election procedure until they
were submitted to and approved by a three-judge Federal
District Court in Washington, D. C., or the Attorney
General. Id., at 439, codified as amended at 42 U. S. C.
§ 1973c(a). Such preclearance is granted only 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.”
Ibid. We have interpreted the requirements of § 5 to apply
not only to the ballot-access rights guaranteed by § 4, but to
drawing district lines as well. Allen v. State Bd. of Elec
tions, 393 U. S. 544, 564–565 (1969).
To confine these remedies to areas of flagrant disenfran
chisement, the Act applied them only to States that had used
a forbidden test or device in November 1964, and had less

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than 50% voter registration or turnout in the 1964 Presiden
tial election. § 4(b), 79 Stat. 438. Congress recognized that
the coverage formula it had adopted “might bring within its
sweep governmental units not guilty of any unlawful dis
criminatory voting practices.” Briscoe v. Bell, 432 U. S. 404,
411 (1977). It therefore “afforded such jurisdictions imme
diately available protection in the form of . . . [a] ‘bailout’
suit.” Ibid.
To bail out under the current provision, a jurisdiction
must seek a declaratory judgment from a three-judge Dis
trict Court in Washington, D. C. 42 U. S. C. §§ 1973b(a)(1),
1973c(a). It must show that for the previous 10 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; it must also show that
it has “engaged in constructive efforts to eliminate intim
idation and harassment” of voters, and similar measures.
§§ 1973b(a)(1)(A)–(F). The Attorney General can consent to
entry of judgment in favor of bailout if the evidence warrants
it, though other interested parties are allowed to intervene
in the declaratory judgment action. § 1973b(a)(9). There
are other restrictions: To bail out, a covered jurisdiction
must show that every jurisdiction in its territory has com
plied with all of these requirements. § 1973b(a)(3). The
District Court also retains continuing jurisdiction over a suc
cessful bailout suit for 10 years, and may reinstate coverage
if any violation is found. § 1973b(a)(5).
As enacted, §§ 4 and 5 of the Voting Rights Act were tem
porary provisions. They were expected to be in effect for
only five years. § 4(a), 79 Stat. 438. We upheld the tempo
rary Voting Rights Act of 1965 as an appropriate exercise
of congressional power in Katzenbach, explaining that “[t]he
constitutional propriety of the Voting Rights Act of 1965
must be judged with reference to the historical experience
which it reflects.” 383 U. S., at 308. We concluded that the
problems Congress faced when it passed the Act were so dire

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that “exceptional conditions [could] justify legislative meas
ures not otherwise appropriate.” Id., at 334–335 (citing
Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398
(1934), and Wilson v. New, 243 U. S. 332 (1917)).
Congress reauthorized the Act in 1970 (for 5 years), 1975
(for 7 years), and 1982 (for 25 years). The coverage formula
remained the same, based on the use of voting-eligibility
tests and the rate of registration and turnout among all vot
ers, but the pertinent dates for assessing these criteria
moved from 1964 to include 1968 and eventually 1972. 42
U. S. C. § 1973b(b). We upheld each of these reauthoriza
tions against constitutional challenges, finding that circum
stances continued to justify the provisions. Georgia v.
United States, 411 U. S. 526 (1973); City of Rome v. United
States, 446 U. S. 156 (1980); Lopez v. Monterey County, 525
U. S. 266 (1999). Most recently, in 2006, Congress extended
§ 5 for yet another 25 years. Fannie Lou Hamer, Rosa
Parks, and Coretta Scott King Voting Rights Act Reauthori
zation and Amendments Act of 2006, 120 Stat. 577. The
2006 Act retained 1972 as the last baseline year for trigger
ing coverage under § 5. It is that latest extension that is
now before us.
B
Northwest Austin Municipal Utility District Number One
was created in 1987 to deliver city services to residents of a
portion of Travis County, Texas. It is governed by a board
of five members, elected to staggered terms of four years.
The district does not register voters but is responsible for
its own elections; for administrative reasons, those elections
are run by Travis County. Because the district is located in
Texas, it is subject to the obligations of § 5, although there
is no evidence that it has ever discriminated on the basis
of race.
The district filed suit in the District Court for the District
of Columbia, seeking relief under the statute’s bailout provi
sions and arguing in the alternative that, if interpreted to

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render the district ineligible for bailout, § 5 was unconstitu
tional. The three-judge District Court rejected both claims.
Under the statute, only a “State or political subdivision” is
permitted to seek bailout, 42 U. S. C. § 1973b(a)(1)(A), and
the court concluded that the district was not a political subdi
vision because that term includes only “counties, parishes,
and voter-registering subunits,” Northwest Austin Munici
pal Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 232
(2008). Turning to the district’s constitutional challenge,
the court concluded that the 25-year extension of § 5 was
constitutional both because “Congress . . . rationally con
cluded that extending [§] 5 was necessary to protect minori
ties from continued racial discrimination in voting” and be
cause “the 2006 Amendment qualifies as a congruent and
proportional response to the continuing problem of racial
discrimination in voting.” Id., at 283. We noted probable
jurisdiction, 555 U. S. 1091 (2009), and now reverse.
II
The historic accomplishments of the Voting Rights Act are
undeniable. When it was first passed, unconstitutional dis
crimination was rampant, and the “registration of voting-age
whites ran roughly 50 percentage points or more ahead” of
black registration in many covered States. Katzenbach,
supra, at 313; H. R. Rep. No. 109–478, p. 12 (2006). Today,
the registration gap between white and black voters is in
single digits in the covered States; in some of those States,
blacks now register and vote at higher rates than whites.
Id., at 12–13. Similar dramatic improvements have oc
curred for other racial minorities. Id., at 18–20. “[M]any
of the first generation barriers to minority voter registration
and voter turnout that were in place prior to the [Voting
Rights Act] have been eliminated.” Id., at 12; Bartlett v.
Strickland, 556 U. S. 1, 10 (2009) (plurality opinion) (“Pas
sage of the Voting Rights Act of 1965 was an important step
in the struggle to end discriminatory treatment of minorities

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who seek to exercise one of the most fundamental rights of
our citizens: the right to vote”).
At the same time, § 5, “which authorizes federal intrusion
into sensitive areas of state and local policymaking, imposes
substantial ‘federalism costs.’ ” Lopez, supra, at 282 (quot
ing Miller v. Johnson, 515 U. S. 900, 926 (1995)). These fed
eralism costs have caused Members of this Court to express
serious misgivings about the constitutionality of § 5. Katz
enbach, 383 U. S., at 358–362 (Black, J., concurring and dis
senting); Allen, 393 U. S., at 586, n. 4 (Harlan, J., concurring
in part and dissenting in part); Georgia, supra, at 545 (Pow
ell, J., dissenting); City of Rome, 446 U. S., at 209–221 (Rehn
quist, J., dissenting); id., at 200–206 (Powell, J., dissenting);
Lopez, 525 U. S., at 293–298 (Thomas, J., dissenting); id., at
288 (Kennedy, J., concurring in judgment).
Section 5 goes beyond the prohibition of the Fifteenth
Amendment by suspending all changes to state election
law—however innocuous—until they have been precleared
by federal authorities in Washington, D. C. The preclear
ance requirement applies broadly, NAACP v. Hampton
County Election Comm’n, 470 U. S. 166, 175–176 (1985), and
in particular to every political subdivision in a covered State,
no matter how small, United States v. Sheffield Bd. of
Comm’rs, 435 U. S. 110, 117–118 (1978).
Some of the conditions that we relied upon in upholding
this statutory scheme in Katzenbach and City of Rome have
unquestionably improved. Things have changed in the
South. Voter turnout and registration rates now approach
parity. Blatantly discriminatory evasions of federal decrees
are rare. And minority candidates hold office at unprece
dented levels. See generally H. R. Rep. No. 109–478, at
12–18.
These improvements are no doubt due in significant part
to the Voting Rights Act itself, and stand as a monument
to its success. Past success alone, however, is not adequate
justification to retain the preclearance requirements. See

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Issacharoff, Is Section 5 of the Voting Rights Act a Victim
of Its Own Success? 104 Colum. L. Rev. 1710 (2004). It may
be that these improvements are insufficient and that condi
tions continue to warrant preclearance under the Act. But
the Act imposes current burdens and must be justified by
current needs.
The Act also differentiates between the States, despite our
historic tradition that all the States enjoy “equal sover
eignty.” United States v. Louisiana, 363 U. S. 1, 16 (1960)
(citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845));
see also Texas v. White, 7 Wall. 700, 725–726 (1869). Dis
tinctions can be justified in some cases. “The doctrine of
the equality of States . . . does not bar . . . remedies for local
evils which have subsequently appeared.” Katzenbach,
supra, at 328–329 (emphasis added). But 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.
These federalism concerns are underscored by the argu
ment that the preclearance requirements in one State would
be unconstitutional in another. See Georgia v. Ashcroft, 539
U. S. 461, 491–492 (2003) (Kennedy, J., concurring) (“Race
cannot be the predominant factor in redistricting under our
decision in Miller v. Johnson, 515 U. S. 900 (1995). Yet con
siderations of race that would doom a redistricting plan
under the Fourteenth Amendment or § 2 seem to be what
save it under § 5”). Additional constitutional concerns are
raised in saying that this tension between §§ 2 and 5 must
persist in covered jurisdictions and not elsewhere.
The evil that § 5 is meant to address may no longer be
concentrated in the jurisdictions singled out for preclearance.
The statute’s coverage formula 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. For
example, the racial gap in voter registration and turnout is
lower in the States originally covered by § 5 than it is nation

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wide. E. Blum & L. Campbell, Assessment of Voting Rights
Progress in Jurisdictions Covered Under Section Five of
the Voting Rights Act 3–6 (Am. Enterprise Inst. 2006).
Congress heard warnings from supporters of extending § 5
that the evidence in the record did not address “system
atic differences between the covered and the non-covered
areas of the United States[,] . . . and, in fact, the evidence
that is in the record suggests that there is more similarity
than difference.” The Continuing Need for Section 5 Pre-
Clearance: Hearing before the Senate Committee on the
Judiciary, 109th Cong., 2d Sess., 10 (2006) (statement of Rich
ard H. Pildes); see also Persily, The Promise and Pitfalls
of the New Voting Rights Act, 117 Yale L. J. 174, 208 (2007)
(“The most one can say in defense of the [coverage] for
mula is that it is the best of the politically feasible alter
natives or that changing the formula would . . . disrupt
settled expectations”).
The parties do not agree on the standard to apply in decid
ing whether, in light of the foregoing concerns, Congress ex
ceeded its Fifteenth Amendment enforcement power in ex
tending the preclearance requirements. The district argues
that “ ‘[t]here must be a congruence and proportionality be
tween the injury to be prevented or remedied and the means
adopted to that end,’ ” Brief for Appellant 31 (quoting City
of Boerne v. Flores, 521 U. S. 507, 520 (1997)); the Federal
Government asserts that it is enough that the legislation be
a “ ‘rational means to effectuate the constitutional prohibi
tion,’ ” Brief for Federal Appellee 6 (quoting Katzenbach,
supra, at 324). That question has been extensively briefed
in this case, but we need not resolve it. The Act’s preclear
ance requirements and its coverage formula raise serious
constitutional questions under either test.
In assessing those questions, we are keenly mindful of our
institutional role. We fully appreciate that judging the con
stitutionality of an Act of Congress is “the gravest and most
delicate duty that this Court is called on to perform.” Blod

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gett v. Holden, 275 U. S. 142, 147–148 (1927) (Holmes, J., con
curring). “The Congress is a coequal branch of government
whose Members take the same oath we do to uphold the Con
stitution of the United States.” Rostker v. Goldberg, 453
U. S. 57, 64 (1981). The Fifteenth Amendment empowers
“Congress,” not the Court, to determine in the first instance
what legislation is needed to enforce it. Congress amassed
a sizable record in support of its decision to extend the
preclearance requirements, a record the District Court de
termined “document[ed] contemporary racial discrimination
in covered states.” 573 F. Supp. 2d, at 265. The District
Court also found that the record “demonstrat[ed] that
section 5 prevents discriminatory voting changes” by “qui
etly but effectively deterring discriminatory changes.” Id.,
at 264.
We will not shrink from our duty “as the bulwar[k] of a
limited constitution against legislative encroachments,” The
Federalist No. 78, p. 526 (J. Cooke ed. 1961) (A. Hamilton),
but “[i]t is a well-established principle governing the pru
dent exercise of this Court’s jurisdiction that normally the
Court will not decide a constitutional question if there is
some other ground upon which to dispose of the case,” Es
cambia County v. McMillan, 466 U. S. 48, 51 (1984) (per cu
riam). Here, the district also raises a statutory claim that
it is eligible to bail out under §§ 4 and 5.
Justice Thomas argues that the principle of constitu
tional avoidance has no pertinence here. He contends that
even if we resolve the district’s statutory argument in its
favor, we would still have to reach the constitutional ques
tion, because the district’s statutory argument would not
afford it all the relief it seeks. Post, at 212–214 (opinion
concurring in judgment in part and dissenting in part).
We disagree. The district expressly describes its con
stitutional challenge to § 5 as being “in the alternative” to
its statutory argument. See Brief for Appellant 64 (“[T]he
Court should reverse the judgment of the district court and

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render judgment that the district is entitled to use the bail
out procedure or, in the alternative, that § 5 cannot be consti
tutionally applied to the district”). The district’s counsel
confirmed this at oral argument. See Tr. of Oral Arg. 14
(“[Question:] [D]o you acknowledge that if we find in your
favor on the bailout point we need not reach the consti
tutional point? [Answer:] I do acknowledge that”). We
therefore turn to the district’s statutory argument.
III
Section 4(b) of the Voting Rights Act authorizes a bail
out suit by a “State or political subdivision.” 42 U. S. C.
§ 1973b(a)(1)(A). There is no dispute that the district is a
political subdivision of the State of Texas in the ordinary
sense of the term. See, e. g., Black’s Law Dictionary 1197
(8th ed. 2004) (“A division of a state that exists primarily to
discharge some function of local government”). The district
was created under Texas law with “powers of government”
relating to local utilities and natural resources. Tex. Const.,
Art. XVI, § 59(b); Tex. Water Code Ann. § 54.011 (West 2002);
see also Bennett v. Brown Cty. Water Improvement Dist.
No. 1, 272 S. W. 2d 498, 500 (Tex. 1954) (“[W]ater improve
ment district[s] . . . are held to be political subdivisions of the
State” (internal quotation marks omitted)).
The Act, however, also provides a narrower statutory
definition in § 14(c)(2): “ ‘[P]olitical subdivision’ shall mean
any county or parish, except that where registration for vot
ing 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.” 42 U. S. C.
§ 1973l(c)(2). The District Court concluded that this defini
tion applied to the bailout provision in § 4(a), and that the
district did not qualify, since it is not a county or parish and
does not conduct its own voter registration.
“Statutory definitions control the meaning of statutory
words, of course, in the usual case. But this is an unusual

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case.” Lawson v. Suwannee Fruit & S. S. Co., 336 U. S. 198,
201 (1949); see also Farmers Reservoir & Irrigation Co. v.
McComb, 337 U. S. 755, 764 (1949); Philko Aviation, Inc. v.
Shacket, 462 U. S. 406, 412 (1983). Were the scope of § 4(a)
considered in isolation from the rest of the statute and our
prior cases, the District Court’s approach might well be
correct. But here specific precedent, the structure of the
Voting Rights Act, and underlying constitutional concerns
compel a broader reading of the bailout provision.
Importantly, we do not write on a blank slate. Our deci
sions have already established that the statutory definition
in § 14(c)(2) does not apply to every use of the term “political
subdivision” in the Act. We have, for example, concluded
that the definition does not apply to the preclearance obliga
tion of § 5. According to its text, § 5 applies only “[w]hen
ever a [covered] State or political subdivision” enacts or
administers a new voting practice. Yet in Sheffield Bd. of
Comm’rs, 435 U. S. 110, we rejected the argument by an Ala
bama city that it was neither a State nor a political subdivi
sion as defined in the Act, and therefore did not need to seek
preclearance of a voting change. The dissent agreed with
the city, pointing out that the city did not meet the statutory
definition of “political subdivision” and therefore could not
be covered. Id., at 141–144 (opinion of Stevens, J.). The
majority, however, relying on the purpose and structure of
the Act, concluded that the “definition was intended to oper
ate only for purposes of determining which political units
in nondesignated States may be separately designated for
coverage under § 4(b).” Id., at 128–129; see also id., at 130,
n. 18 (“Congress’ exclusive objective in § 14(c)(2) was to limit
the jurisdictions which may be separately designated for
coverage under § 4(b)”).
We reaffirmed this restricted scope of the statutory defi
nition the next Term in Dougherty County Bd. of Ed. v.
White, 439 U. S. 32 (1978). There, a school board argued

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that because “it d[id] not meet the definition” of political sub
division in § 14(c)(2), it “d[id] not come within the purview of
§ 5.” Id., at 43, 44. We responded:
“This contention is squarely foreclosed by our decision
last Term in [Sheffield]. There, we expressly rejected
the suggestion that the city of Sheffield was beyond the
ambit of § 5 because it did not itself register voters and
hence was not a political subdivision as the term is de
fined in § 14(c)(2) of the Act. . . . [O]nce a State has
been designated for coverage, § 14(c)(2)’s definition of po
litical subdivision has no operative significance in deter
mining the reach of § 5.” Id., at 44 (internal quotation
marks omitted).
According to these decisions, then, the statutory definition
of “political subdivision” in § 14(c)(2) does not apply to every
use of the term “political subdivision” in the Act. Even the
intervenors who oppose the district’s bailout concede, for ex
ample, that the definition should not apply to § 2, which bans
racial discrimination in voting by “any State or political sub
division,” 42 U. S. C. § 1973(a). See Brief for Intervenor-
Appellee Texas State Conference of NAACP Branches et al.
17 (citing Smith v. Salt River Project Agricultural Improve
ment and Power Dist., 109 F. 3d 586, 592–593 (CA9 1997));
see also United States v. Uvalde Consol. Independent School
Dist., 625 F. 2d 547, 554 (CA5 1980) (“[T]he Supreme Court
has held that this definition [in § 14(c)(2)] limits the meaning
of the phrase ‘State or political subdivision’ only when it ap
pears in certain parts of the Act, and that it does not confine
the phrase as used elsewhere in the Act”). In light of our
holdings that the statutory definition does not constrict the
scope of preclearance required by § 5, the district argues, it
only stands to reason that the definition should not constrict
the availability of bailout from those preclearance require
ments either.

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The Government responds that any such argument is fore
closed by our interpretation of the statute in City of Rome,
446 U. S. 156. There, it argues, we made clear that the dis
cussion of political subdivisions in Sheffield was dictum, and
“specifically held that a ‘city is not a “political subdivision”
for purposes of § 4(a) bailout.’ ” Brief for Federal Appellee
14 (quoting City of Rome, supra, at 168).
Even if that is what City of Rome held, the premises of
its statutory holding did not survive later changes in the law.
In City of Rome we rejected the city’s attempt to bail out
from coverage under § 5, concluding that “political units of a
covered jurisdiction cannot independently bring a § 4(a) bail
out action.” 446 U. S., at 167. We concluded that the stat
ute as then written authorized a bailout suit only by a
“State” subject to the coverage formula, or a “ ‘political sub
division with respect to which [coverage] determinations
have been made as a separate unit,’ ” id., at 164, n. 2 (quoting
42 U. S. C. § 1973b(a) (1976 ed.)); see also 446 U. S., at 163–
169. Political subdivisions covered because they were part
of a covered State, rather than because of separate coverage
determinations, could not separately bail out. As Justice
Stevens put it, “[t]he political subdivisions of a covered
State” were “not entitled to bail out in a piecemeal fashion.”
Id., at 192 (concurring opinion).
In 1982, however, Congress expressly repudiated City of
Rome and instead embraced “piecemeal” bailout. As part
of an overhaul of the bailout provision, Congress amended
the Voting Rights Act to expressly provide that bailout was
also available to “political subdivisions” in a covered State,
“though [coverage] determinations were not made with re
spect to such subdivision as a separate unit.” Voting Rights
Act Amendments of 1982, § 2(b), 96 Stat. 131, codified at
42 U. S. C. § 1973b(a)(1) (emphasis added). In other words,
Congress decided that a jurisdiction covered because it was
within a covered State need not remain covered for as long

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as the State did. If the subdivision met the bailout require
ments, it could bail out, even if the State could not. In light
of these amendments, our logic for denying bailout in City
of Rome is no longer applicable to the Voting Rights Act—
if anything, that logic compels the opposite conclusion.
Bailout and preclearance under § 5 are now governed by a
principle of symmetry. “Given the Court’s decision in Shef
field that all political units in a covered State are to be
treated for § 5 purposes as though they were ‘political sub
divisions’ of that State, it follows that they should also be
treated as such for purposes of § 4(a)’s bailout provisions.”
City of Rome, supra, at 192 (Stevens, J., concurring).
The Government contends that this reading of Sheffield is
mistaken, and that the district is subject to § 5 under our
decision in Sheffield not because it is a “political subdivision”
but because it is a “State.” That would mean it could bail
out only if the whole State could bail out.
The assertion that the district is a State is at least counter
intuitive. We acknowledge, however, that there has been
much confusion over why Sheffield held the city in that
case to be covered by the text of § 5. See City of Rome,
446 U. S., at 168–169; id., at 192 (Stevens, J., concur
ring); see also Uvalde Consol. Independent School Dist. v.
United States, 451 U. S. 1002, 1004, n. 4 (1981) (Rehnquist, J.,
dissenting from denial of certiorari) (“[T]his Court has not
yet settled on the proper construction of the term ‘political
subdivision’ ”).
But after the 1982 amendments, the Government’s position
is untenable. If the district is considered the State, and
therefore necessarily subject to preclearance so long as
Texas is covered, then the same must be true of all other
subdivisions of the State, including counties. That would
render even counties unable to seek bailout so long as their
State was covered. But that is the very restriction the 1982
amendments overturned. Nobody denies that counties in a

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covered State can seek bailout, as several of them have. See
Voting Rights Act: Section 5 of the Act—History, Scope, and
Purpose: Hearing before the Subcommittee on the Constitu
tion of the House Committee on the Judiciary, 109th Cong.,
1st Sess., 2599–2834 (2005) (detailing bailouts). Because
such piecemeal bailout is now permitted, it cannot be true
that § 5 treats every governmental unit as the State itself.
The Government’s contrary interpretation has helped to
render the bailout provision all but a nullity. Since 1982,
only 17 jurisdictions—out of the more than 12,000 covered
political subdivisions—have successfully bailed out of the
Act. App. to Brief for Jurisdictions That Have Bailed Out
as Amici Curiae 3; Dept. of Commerce, Bureau of Census,
2002 Census of Governments, Vol. 1, No. 1, pp. 1, 22–60. It
is unlikely that Congress intended the provision to have such
limited effect. See United States v. Hayes, 555 U. S. 415,
426–427 (2009).
We therefore hold that all political subdivisions—not only
those described in § 14(c)(2)—are eligible to file a bailout suit.
* * *
More than 40 years ago, this Court concluded that “excep
tional conditions” prevailing in certain parts of the coun
try justified extraordinary legislation otherwise unfamiliar
to our federal system. Katzenbach, 383 U. S., at 334. In
part due to the success of that legislation, we are now a
very different Nation. Whether conditions continue to jus
tify such legislation is a difficult constitutional question we
do not answer today. We conclude instead that the Vot
ing Rights Act permits all political subdivisions, including
the district in this case, to seek relief from its preclearance
requirements.
The judgment of the District Court is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.

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Justice Thomas, concurring in the judgment in part and
dissenting in part.
This appeal presents two questions: first, whether appel
lant is entitled to bail out from coverage under the Voting
Rights Act of 1965 (VRA); and second, whether the preclear
ance requirement of § 5 of the VRA is unconstitutional. Be
cause the Court’s statutory decision does not provide appel
lant with full relief, I conclude that it is inappropriate to
apply the constitutional avoidance doctrine in this case.
I would therefore decide the constitutional issue presented
and hold that § 5 exceeds Congress’ power to enforce the Fif
teenth Amendment.
I
The doctrine of constitutional avoidance factors heavily in
the Court’s conclusion that appellant is eligible for bailout as
a “political subdivision” under § 4(a) of the VRA. See ante,
at 206–207. Regardless of the Court’s resolution of the stat
utory question, I am in full agreement that this case raises
serious questions concerning the constitutionality of § 5 of
the VRA. But, unlike the Court, I do not believe that the
doctrine of constitutional avoidance is applicable here. The
ultimate relief sought in this case is not bailout eligibility—
it is bailout itself. See First Amended Complaint in
No. 06–1384 (DDC), p. 8, Record, Doc. 83 (“Plaintiff requests
the Court to declare that the district has met the bail-out
requirements of § 4 of the [VRA] and that the preclearance
requirements of § 5 . . . no longer apply to the district; or,
in the alternative, that § 5 of the Act as applied to the dis
trict is an unconstitutional overextension of Congress’s en
forcement power to remedy past violations of the Fifteenth
Amendment”).
Eligibility for bailout turns on the statutory question ad
dressed by the Court—the proper definition of “political sub
division” in the bailout clauses of § 4(a) of the VRA. Entitle
ment to bailout, however, requires a covered “political
subdivision” to submit substantial evidence indicating that

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it is not engaging in “discrimination in voting on account
of race,” see 42 U. S. C. § 1973b(a)(3). The Court properly
declines to give appellant bailout because appellant has not
yet proved its compliance with the statutory requirements
for such relief. See §§ 1973b(a)(1)–(3). In fact, the record
below shows that appellant’s factual entitlement to bailout is
a vigorously contested issue. See, e. g., NAACP’s Statement
of Undisputed Material Facts in No. 06–1384 (DDC),
pp. 490–492, Record, Doc. 100; Attorney General’s Statement
of Uncontested Material Facts in No. 06–1384 (DDC), ¶¶ 19,
59, Record, Doc. 98. Given its resolution of the statutory
question, the Court has thus correctly remanded the case for
resolution of appellant’s factual entitlement to bailout. See
ante, at 211.
But because the Court is not in a position to award appel
lant bailout, adjudication of the constitutionality of § 5, in
my view, cannot be avoided. “Traditionally, the avoidance
canon was not a doctrine under which courts read statutes
to avoid mere constitutional doubts. Instead, it commanded
courts, when faced with two plausible constructions of a stat
ute—one constitutional and the other unconstitutional—to
choose the constitutional reading.” Clark v. Martinez, 543
U. S. 371, 395 (2005) (Thomas, J., dissenting). To the extent
that constitutional avoidance is a worthwhile tool of statu
tory construction, it is because it allows a court to dispose
of an entire case on grounds that do not require the court
to pass on a statute’s constitutionality. See Ashwander v.
TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring)
(“The Court will not pass upon a constitutional question al
though properly presented by the record, if there is also
present some other ground upon which the case may be dis
posed of ”); see also, e. g., Mayor of Philadelphia v. Edu
cational Equality League, 415 U. S. 605, 629 (1974). The
doctrine “avoids decision of constitutional questions where
possible, and it permits one lawsuit, rather than two, to re
solve the entire controversy.” C. Wright, The Law of Fed

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eral Courts § 19, p. 104 (4th ed. 1983). Absent a determina
tion that appellant is not just eligible for bailout, but is
entitled to it, this case will not have been entirely disposed
of on a nonconstitutional ground. Cf. Tr. of Oral Arg. 14
(“[I]f the Court were to give us bailout . . . the Court might
choose on its own not to reach the constitutional issues be
cause we would receive relief ”). Invocation of the doctrine
of constitutional avoidance is therefore inappropriate in this
case.
The doctrine of constitutional avoidance is also unavailable
here because an interpretation of § 4(a) that merely makes
more political subdivisions eligible for bailout does not ren
der § 5 constitutional, and the Court notably does not suggest
otherwise. See Clark, supra, at 396 (Thomas, J., dissent
ing). Bailout eligibility is a distant prospect for most cov
ered jurisdictions. To obtain bailout a covered jurisdiction
must satisfy numerous objective criteria. It must show that
during the previous 10 years: (A) no “test or device has been
used within such State or political subdivision for the pur
pose or with the effect of denying or abridging the right to
vote on account of race or color”; (B) “no final judgment of
any court of the United States . . . has determined that deni
als or abridgements of the right to vote on account of race
or color have occurred anywhere in the territory of ” the
covered jurisdiction; (C) “no Federal examiners or observers
. . . have been assigned to” the covered jurisdiction; (D) the
covered jurisdiction has fully complied with § 5; and (E) “the
Attorney General has not interposed any objection (that
has not been overturned by a final judgment of a court)
and no declaratory judgment has been denied under [§ 5].”
§§ 1973b(a)(1)(A)–(E). The jurisdiction also has the burden
of presenting “evidence of minority participation, includ
ing evidence of the levels of minority group registration
and voting, changes in such levels over time, and disparities
between minority-group and non-minority-group participa
tion.” § 1973b(a)(2).

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These extensive requirements may be difficult to satisfy,
see Brief for Georgia Governor Sonny Perdue as Amicus
Curiae 20–26, but at least they are objective. The covered
jurisdiction seeking bailout must also meet subjective crite
ria: It must “(i) have eliminated voting procedures and meth
ods of election which inhibit or dilute equal access to the
electoral process; (ii) have engaged in constructive efforts to
eliminate intimidation and harassment of persons exercising
rights protected [under the Act]; and (iii) have engaged in
other constructive efforts, such as expanded opportunity for
convenient registration and voting for every person of voting
age and the appointment of minority persons as election of
ficials throughout the jurisdiction and at all stages of the
election and registration process.” §§ 1973b(a)(1)(F)(i)–(iii).
As a result, a covered jurisdiction meeting each of the ob
jective conditions could nonetheless be denied bailout be
cause it has not, in the subjective view of the United States
District Court for the District of Columbia, engaged in suf
ficiently “constructive efforts” to expand voting opportuni
ties, § 1973b(a)(1)(F)(iii). Congress, of course, has complete
authority to set the terms of bailout. But its promise of a
bailout opportunity has, in the great majority of cases,
turned out to be no more than a mirage. As the Court
notes, only a handful “of the more than 12,000 covered politi
cal subdivisions . . . have successfully bailed out of the Act.”
Ante, at 211; 1 see Williamson, The 1982 Amendments to the
Voting Rights Act: A Statutory Analysis of the Revised Bail
out Provisions, 62 Wash. U. L. Q. 1, 42 (1984) (explaining that
1 All 17 covered jurisdictions that have been awarded bailout are from
Virginia, see App. to Brief for Jurisdictions That Have Bailed Out as
Amici Curiae 3, and all 17 were represented by the same attorney—a
former lawyer in the Voting Rights Section of the Department of Justice,
see Hebert, An Assessment of the Bailout Provisions of the Voting Rights
Act, in Voting Rights Act Reauthorization of 2006, p. 257, n. 1 (A. Hender
son ed. 2007). Whatever the reason for this anomaly, it only underscores
how little relationship there is between the existence of bailout and the
constitutionality of § 5.

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“the conditions for termination of coverage have been made
so restrictive that bailout will continue to be impossible for
most jurisdictions”). Accordingly, bailout eligibility does
not eliminate the issue of § 5’s constitutionality.
II
The Court quite properly alerts Congress that § 5 tests the
outer boundaries of its Fifteenth Amendment enforcement
authority and may not be constitutional. See ante, at 202–
204. And, although I respect the Court’s careful approach to
this weighty issue, I nevertheless believe it is necessary to de
finitively resolve that important question. For the reasons
set forth below, I conclude that the lack of current evidence of
intentional discrimination with respect to voting renders § 5
unconstitutional. The provision can no longer be justified as
an appropriate mechanism for enforcement of the Fifteenth
Amendment.
A
“The government of the United States is one of delegated
powers alone. Its authority is defined and limited by the
Constitution. All powers not granted to it by that instru
ment are reserved to the States or the people.” United
States v. Cruikshank, 92 U. S. 542, 551 (1876); see also U. S.
Term Limits, Inc. v. Thornton, 514 U. S. 779, 848 (1995)
(Thomas, J., dissenting). In the specific area of voting
rights, this Court has consistently recognized that the Con
stitution gives the States primary authority over the struc
turing of electoral systems. See, e. g., White v. Weiser, 412
U. S. 783, 795 (1973); Burns v. Richardson, 384 U. S. 73,
84–85 (1966). “No function is more essential to the separate
and independent existence of the States and their govern
ments than the power to determine within the limits of the
Constitution the qualifications of their own voters for state,
county, and municipal offices and the nature of their own ma
chinery for filling local public offices.” Oregon v. Mitchell,
400 U. S. 112, 125 (1970) (opinion of Black, J.).

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State autonomy with respect to the machinery of self
government defines the States as sovereign entities rather
than mere provincial outposts subject to every dictate of a
central governing authority. See U. S. Const., Amdt. 10
(“The powers not delegated to the United States by the Con
stitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people”); see also Alden v.
Maine, 527 U. S. 706, 713 (1999). In the main, the “Framers
of the Constitution intended the States to keep for them
selves, as provided in the Tenth Amendment, the power to
regulate elections.” Gregory v. Ashcroft, 501 U. S. 452, 461–
462 (1991) (internal quotation marks omitted).
To be sure, state authority over local elections is not abso
lute under the Constitution. The Fifteenth Amendment
guarantees that the “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,” § 1, and it grants Congress the authority to
“enforce” these rights “by appropriate legislation,” § 2. The
Fifteenth Amendment thus renders unconstitutional any
federal or state law that would limit a citizen’s access to
the ballot on one of the three bases enumerated in the
Amendment. See Mobile v. Bolden, 446 U. S. 55, 65 (1980)
(plurality opinion) (the Fifteenth Amendment guards against
“purposefully discriminatory denial or abridgment by gov
ernment of the freedom to vote”). Nonetheless, because
States still retain sovereign authority over their election
systems, any measure enacted in furtherance of the Fif
teenth Amendment must be closely examined to ensure that
its encroachment on state authority in this area is limited
to the appropriate enforcement of this ban on discrimination.
There is certainly no question that the VRA initially “was
passed pursuant to Congress’ authority under the Fifteenth
Amendment.” Lopez v. Monterey County, 525 U. S. 266, 282
(1999). For example, §§ 2 and 4(a) seek to implement the
Fifteenth Amendment’s substantive command by creating a

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private cause of action to enforce § 1 of the Fifteenth Amend
ment, see § 1973(a), and by banning discriminatory tests and
devices in covered jurisdictions, see § 1973b(a); see also City
of Lockhart v. United States, 460 U. S. 125, 139 (1983) (Mar
shall, J., concurring in part and dissenting in part) (explain
ing that § 2 reflects Congress’ determination “that voting
discrimination was a nationwide problem” that called for a
“general prohibition of discriminatory practices”). Other
provisions of the VRA also directly enforce the Fifteenth
Amendment. See § 1973h (elimination of poll taxes that ef
fectively deny certain racial groups the right to vote);
§ 1973i(a) (“No person acting under color of law shall fail or
refuse to permit any person to vote who is entitled to vote
. . . or willfully fail or refuse to tabulate, count, and report
such person’s vote”).
Section 5, however, was enacted for a different purpose: to
prevent covered jurisdictions from circumventing the direct
prohibitions imposed by provisions such as §§ 2 and 4(a).
See Reno v. Bossier Parish School Bd., 520 U. S. 471, 477
(1997) (explaining that §§ 2 and 5 “combat different evils” and
“impose very different duties upon the States”). Section 5
“was a response to a 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. That practice had been possible because
each new law remained in effect until the Justice Depart
ment or private plaintiffs were able to sustain the burden of
proving that the new law, too, was discriminatory.” Beer v.
United States, 425 U. S. 130, 140 (1976) (internal quotation
marks omitted).
The rebellion against the enfranchisement of blacks in the
wake of ratification of the Fifteenth Amendment illustrated
the need for increased federal intervention to protect the
right to vote. Almost immediately following Reconstruc
tion, blacks attempting to vote were met with coordinated

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intimidation and violence. See, e. g., L. McDonald, A Voting
Rights Odyssey: Black Enfranchisement in Georgia 34 (2003)
(“By 1872, the legislative and executive branches of state
government . . . were once again firmly in the control of
white Democrats, who resorted to a variety of tactics, includ
ing fraud, intimidation, and violence, to take away the vote
from blacks, despite ratification of the Fifteenth Amendment
in 1870 . . . ”).2 A soon-to-be victorious mayoral candidate
in Wilmington, North Carolina, for example, urged white
voters in an 1898 election-eve speech: “ ‘Go to the polls to
morrow and if you find the negro out voting, tell him to leave
the polls, and if he refuses kill him; shoot him down in his
tracks.’ ” S. Tolnay & E. Beck, A Festival of Violence: An
Analysis of Southern Lynchings, 1882–1930, p. 67 (1995).
This campaign of violence eventually was supplemented,
and in part replaced, by more subtle methods engineered to
deny blacks the right to vote. See South Carolina v. Katz
enbach, 383 U. S. 301, 310–312 (1966). Literacy tests were
particularly effective: “[A]s of 1890 in . . . States [with liter
acy tests], more than two-thirds of the adult Negroes were
illiterate while less than one-quarter of the adult whites
were unable to read or write,” id., at 311, because “[p]rior to
the Civil War, most of the slave States made it a crime to
2 See also S. Rep. No. 41, 42d Cong., 2d Sess., pt. 7, p. 610 (1872) (quoting
a Ku Klux Klan letter warning a black man from Georgia to “ ‘stay at
home if you value your life, and not vote at all, and advise all of your race
to do the same thing. You are marked and closely watched by K. K. K.
. . . ’ ”); see also Jackson Daily Mississippian, Dec. 29, 1887, reprinted in S.
Misc. Doc. No. 166, 50th Cong., 1st Sess., 14 (1888) (“[W]e hereby warn
the negroes that if any one of their race attempts to run for office in the
approaching municipal election he does so at his supremest peril, and we
further warn any and all negroes of this city against attempting, at their
utmost hazard, by vote or influence, to foist on us again this black and
damnable machine miscalled a government of our city” (publishing resolu
tions passed by the Young White Men’s League of Jackson)).

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teach Negroes how to read or write,” see also ibid., n. 10.3
Compounding the tests’ discriminatory impact on blacks,
alternative voter qualification laws such as “grandfather
clauses, property qualifications, [and] ‘good character’ tests”
were enacted to protect those whites who were unable to
pass the literacy tests. Id., at 311; see also Lopez, 525 U. S.,
at 297 (Thomas, J., dissenting) (“Literacy tests were unfairly
administered; whites were given easy questions, and blacks
were given more difficult questions, such as the number of
bubbles in a soap bar, the news contained in a copy of the
Peking Daily, the meaning of obscure passages in state con
stitutions, and the definition of terms such as habeas corpus”
(internal quotation marks omitted)).
The Court had declared many of these “tests and devices”
unconstitutional, see Katzenbach, 383 U. S., at 311–312, but
case-by-case eradication was woefully inadequate to ensure
that the franchise extended to all citizens regardless of race,
see id., at 328. As a result, enforcement efforts before the
enactment of § 5 had rendered the right to vote illusory for
blacks in the Jim Crow South. Despite the Civil War’s
bloody purchase of the Fifteenth Amendment, “the reality
remained far from the promise.” Rice v. Cayetano, 528 U. S.
495, 512–513 (2000); see also R. Wardlaw, Negro Suffrage
in Georgia, 1867–1930, p. 34 (Phelps-Stokes Fellowship Stud
3 Although tests had become the main tool for disenfranchising blacks,
state governments engaged in violence into 1965. See Daniel, Tear Gas,
Clubs Halt 600 in Selma March, Washington Times Herald, Mar. 8, 1965,
pp. A1, A3 (“State troopers and mounted deputies bombarded 600 praying
Negroes with tear gas today and then waded into them with clubs, whips
and ropes, injuring scores. . . . The Negroes started out today to walk the
50 miles to Montgomery to protest to [Governor] Wallace the denial of
Negro voting rights in Alabama”); Banner, Aid for Selma Negroes, N. Y.
Times, Mar. 14, 1965, p. E11 (“We should remember March 7, 1965 as
‘Bloody Sunday in Selma.’ It is now clear that the public officials and the
police of Alabama are at war with those citizens who are Negroes and
who are determined to exercise their rights under the Constitution of the
United States”).

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ies, No. 11, Sept. 1932) (“Southern States were setting out
to accomplish an effectual nullification of the war measures
of Congress”).
Thus, by 1965, Congress had every reason to conclude that
States with a history of disenfranchising voters based on
race would continue to do all they could to evade the
constitutional ban on voting discrimination. By that time,
race-based voting discrimination had “infected the electoral
process in parts of our country for nearly a century.” Katz
enbach, 383 U. S., at 308. Moreover, the massive scale of
disenfranchisement efforts made case-by-case enforcement of
the Fifteenth Amendment impossible, if not Sisyphean. See
id., at 309 (“Congress concluded that the unsuccessful reme
dies 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”);
Rice, supra, at 513 (“Progress was slow, particularly when
litigation had to proceed case by case, district by district,
sometimes voter by voter”); Thernstrom, Section 5 of the
Voting Rights Act: By Now, a Murky Mess, 5 Geo. J. L. &
Pub. Pol’y 41, 44 (2007) (“In 1965, it was perfectly reasonable
to believe that any move affecting black enfranchisement in
the Deep South was deeply suspect. And only such a puni
tive measure [as § 5] had any hope of forcing the South to let
blacks vote” (emphasis in original)).
It was against this backdrop of “historical experience”
that § 5 was first enacted and upheld against a constitutional
challenge. See Katzenbach, supra, at 308. As the Katzen
bach Court explained, § 5, which applied to those States and
political subdivisions that had employed discriminatory tests
and devices in the previous Presidential election, see 42
U. S. C. § 1973b(b), directly targeted the “insidious and per
vasive evil which had been perpetuated in certain parts of
our country through unremitting and ingenious defiance of
the Constitution.” 383 U. S., at 309; see also id., at 329
(“Congress began work with reliable evidence of actual vot

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ing discrimination in a great majority of the States and polit
ical subdivisions affected by the new remedies of the Act”).
According to the Court, it was appropriate to radically inter
fere with control over local elections only in those jurisdic
tions with a history of discriminatory disenfranchisement as
those were “the geographic areas where immediate action
seemed necessary.” Id., at 328. The Court believed it was
thus “permissible to impose the new remedies” on the juris
dictions covered under § 4(b) “at least in the absence of proof
that they ha[d] been free of substantial voting discrimination
in recent years.” Id., at 330.
In upholding § 5 in Katzenbach, the Court nonetheless
noted that the provision was an “uncommon exercise of con
gressional power” that would not have been “appropriate”
absent the “exceptional conditions” and “unique circum
stances” present in the targeted jurisdictions at that particu
lar time. Id., at 334–335. In reaching its decision, the
Court thus refused to simply accept Congress’ representa
tion that the extreme measure was necessary to enforce the
Fifteenth Amendment; rather, it closely reviewed the record
compiled by Congress to ensure that § 5 was “ ‘appropriate’ ”
antievasion legislation. See id., at 308. In so doing, the
Court highlighted evidence showing that black voter regis
tration rates ran approximately 50 percentage points lower
than white voter registration in several States. See id., at
313. It also noted that the registration rate for blacks in
Alabama “rose only from 14.2% to 19.4% between 1958 and
1964; in Louisiana it barely inched ahead from 31.7% to 31.8%
between 1956 and 1965; and in Mississippi it increased only
from 4.4% to 6.4% between 1954 and 1964.” Ibid. The
Court further observed that voter turnout levels in covered
jurisdictions had been at least 12% below the national aver
age in the 1964 Presidential election. See id., at 329–330.
The statistical evidence confirmed Congress’ judgment
that “the extraordinary stratagem of contriving new rules of
various kinds for the sole purpose of perpetuating voting

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discrimination in the face of adverse federal court decrees”
was working and could not be defeated through case-by-case
enforcement of the Fifteenth Amendment. Id., at 335.
This record also clearly supported Congress’ predictive judg
ment that such “States might try similar maneuvers in the
future in order to evade the remedies for voting discrimina
tion contained in the Act itself.” Ibid. These stark statis
tics—in conjunction with the unrelenting use of discrimina
tory tests and practices that denied blacks the right to
vote—constituted sufficient proof of “actual voting discrimi
nation” to uphold the preclearance requirement imposed by
§ 5 on the covered jurisdictions as an appropriate exercise of
congressional power under the Fifteenth Amendment. Id.,
at 330. It was only “[u]nder the compulsion of these unique
circumstances [that] Congress responded in a permissibly de
cisive manner.” Id., at 335.
B
Several important principles emerge from Katzenbach and
the decisions that followed it. First, § 5 prohibits more state
voting practices than those necessarily encompassed by the
explicit prohibition on intentional discrimination found in the
text of the Fifteenth Amendment. The explicit command of
the Fifteenth Amendment is a prohibition on state practices
that in fact deny individuals the right to vote “on account
of ” race, color, or previous servitude. In contrast, § 5 is the
quintessential prophylaxis; it “goes beyond the prohibition of
the Fifteenth Amendment by suspending all changes to
state election law—however innocuous—until they have
been precleared by federal authorities in Washington, D. C.”
Ante, at 202. The Court has freely acknowledged that such
legislation is preventative, upholding it based on the view
that the Reconstruction Amendments give Congress the
power “both to remedy and to deter violation of rights guar
anteed thereunder by prohibiting a somewhat broader swath
of conduct, including that which is not itself forbidden by the

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Amendment’s text.” Kimel v. Florida Bd. of Regents, 528
U. S. 62, 81 (2000) (emphasis added).
Second, because it sweeps more broadly than the substan
tive command of the Fifteenth Amendment, § 5 pushes the
outer boundaries of Congress’ Fifteenth Amendment en
forcement authority. See Miller v. Johnson, 515 U. S. 900,
926 (1995) (detailing the “federalism costs exacted by § 5”);
Presley v. Etowah County Comm’n, 502 U. S. 491, 500–501
(1992) (describing § 5 as “an extraordinary departure from
the traditional course of relations between the States and
the Federal Government”); City of Rome v. United States,
446 U. S. 156, 200 (1980) (Powell, J., dissenting) (“The pre
clearance requirement both intrudes on the prerogatives of
state and local governments and abridges the voting rights
of all citizens in States covered under the Act”); Lopez, 525
U. S., at 293 (Thomas, J., dissenting) (“Section 5 is a unique
requirement that exacts significant federalism costs”); ante,
at 202 (“[Section] 5, which authorizes federal intrusion into
sensitive areas of state and local policymaking, imposes sub
stantial federalism costs” (internal quotation marks omitted)).
Indeed, § 5’s preclearance requirement is “one of the most
extraordinary remedial provisions in an Act noted for its
broad remedies. Even the Department of Justice has de
scribed it as a ‘substantial departure . . . from ordinary con
cepts of our federal system’; its encroachment on state sover
eignty is significant and undeniable.” United States v.
Sheffield Bd. of Comm’rs, 435 U. S. 110, 141 (1978) (Stevens,
J., dissenting) (footnote omitted). This “encroachment is es
pecially troubling because it destroys local control of the
means of self-government, one of the central values of our
polity.” City of Rome, supra, at 201 (Powell, J., dissenting).
More than 40 years after its enactment, this intrusion has
become increasingly difficult to justify.
Third, to accommodate the tension between the con
stitutional imperatives of the Fifteenth and Tenth Amend
ments—a balance between allowing the Federal Govern

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ment to patrol state voting practices for discrimination
and preserving the States’ significant interest in self
determination—the constitutionality of § 5 has always de
pended on the proven existence of intentional discrimination
so extensive that elimination of it through case-by-case en
forcement would be impossible. See Katzenbach, 383 U. S.,
at 308 (“Before enacting the measure, Congress explored
with great care the problem of racial discrimination in vot
ing”); Katzenbach v. Morgan, 384 U. S. 641, 667 (1966) (Har
lan, J., dissenting) (“Congress made a detailed investigation
of various state practices that had been used to deprive Ne
groes of the franchise”). “There can be no remedy without
a wrong. Essential to our holdings in [South Carolina v.]
Katzenbach and City of Rome was our conclusion that Con
gress was remedying the effects of prior intentional racial
discrimination. In both cases, we required Congress to
have some evidence that the jurisdiction burdened with pre
clearance obligations had actually engaged in such inten
tional discrimination.” Lopez, supra, at 294–295 (Thomas,
J., dissenting) (emphasis in original).
The Court has never deviated from this understanding.
We have explained that prophylactic legislation designed to
enforce the Reconstruction Amendments must “identify con
duct transgressing the . . . substantive provisions” it seeks
to enforce and be tailored “to remedying or preventing such
conduct.” Florida Prepaid Postsecondary Ed. Expense Bd.
v. College Savings Bank, 527 U. S. 627, 639 (1999). Congress
must establish a “history and pattern” of constitutional vio
lations to establish the need for § 5 by justifying a remedy
that pushes the limits of its constitutional authority. Board
of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 368
(2001). As a result, for § 5 to withstand renewed constitu
tional scrutiny, there must be a demonstrated connection be
tween the “remedial measures” chosen and the “evil pre
sented” in the record made by Congress when it renewed the
VRA. City of Boerne v. Flores, 521 U. S. 507, 530 (1997).

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“Strong measures appropriate to address one harm may be
an unwarranted response to another, lesser one.” Ibid.
C
The extensive pattern of discrimination that led the Court
to previously uphold § 5 as enforcing the Fifteenth Amend
ment no longer exists. Covered jurisdictions are not now
engaged in a systematic campaign to deny black citizens ac
cess to the ballot through intimidation and violence. And
the days of “grandfather clauses, property qualifications,
‘good character’ tests, and the requirement that registrants
‘understand’ or ‘interpret’ certain matter,” Katzenbach, 383
U. S., at 311, are gone. There is thus currently no concerted
effort in these jurisdictions to engage in the “unremitting
and ingenious defiance of the Constitution,” id., at 309, that
served as the constitutional basis for upholding the “uncom
mon exercise of congressional power” embodied in § 5, id.,
at 334.
The lack of sufficient evidence that the covered jurisdic
tions currently engage in the type of discrimination that un
derlay the enactment of § 5 undermines any basis for retain
ing it. Punishment for long past sins is not a legitimate
basis for imposing a forward-looking preventative measure
that has already served its purpose. Those supporting § 5’s
reenactment argue that without it these jurisdictions would
return to the racially discriminatory practices of 30 and 40
years ago. But there is no evidence that public officials
stand ready, if given the chance, to again engage in concerted
acts of violence, terror, and subterfuge in order to keep mi
norities from voting. Without such evidence, the charge can
only be premised on outdated assumptions about racial atti
tudes in the covered jurisdictions. Admitting that a prophy
lactic law as broad as § 5 is no longer constitutionally justified
based on current evidence of discrimination is not a sign of
defeat. It is an acknowledgment of victory.

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The current statistical evidence confirms that the emer
gency that prompted the enactment of § 5 has long since
passed. By 2006, the voter registration rates for blacks in
Alabama, Louisiana, and Mississippi had jumped to 71.8%,
66.9%, and 72.2%, respectively. See App. to Brief for South
eastern Legal Foundation as Amicus Curiae 6a–7a (herein
after SLF Brief). Therefore, in contrast to the Katzenbach
Court’s finding that the “registration of voting-age whites
ran roughly 50 percentage points or more ahead of Negro
registration” in these States in 1964, see 383 U. S., at 313,
since that time this disparity has nearly vanished. In 2006,
the disparity was only 3 percentage points in Alabama, 8
percentage points in Louisiana, and in Mississippi, black
voter registration actually exceeded white voter registration
by 1.5 percentage points. See App. to SLF Brief 6a–7a. In
addition, blacks in these three covered States also have
higher registration numbers than the registration rate for
whites in noncovered states. See E. Blum & L. Campbell,
Assessment of Voting Rights Progress in Jurisdictions Cov
ered Under Section Five of the Voting Rights Act 3–6 (Am.
Enterprise Inst. 2006); see also S. Rep. No. 109–295, p. 11
(2006) (noting that “presently in seven of the covered States,
African-Americans are registered at a rate higher than the
national average”; in two more, black registration in the 2004
election was “identical to the national average”; and in “Cali
fornia, Georgia, Mississippi, North Carolina, and Texas, black
registration and turnout in the 2004 election . . . was higher
than that for whites”).
Indeed, when reenacting § 5 in 2006, Congress evidently
understood that the emergency conditions which prompted
§ 5’s original enactment no longer exist. See H. R. Rep.
No. 109–478, p. 12 (2006) (“The record reveals that many of
the first generation barriers to minority voter registration
and voter turnout that were in place prior to the VRA have
been eliminated”). Instead of relying on the kind of evi

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dence that the Katzenbach Court had found so persuasive,
Congress based reenactment on evidence of what it termed
“second generation barriers constructed to prevent minority
voters from fully participating in the electoral process.”
§ 2(b)(2), 120 Stat. 577. But such evidence is not probative
of the type of purposeful discrimination that prompted Con
gress to enact § 5 in 1965. For example, Congress relied
upon evidence of racially polarized voting within the covered
jurisdictions. But racially polarized voting is not evidence
of unconstitutional discrimination, see Bolden, 446 U. S. 55,
is not state action, see James v. Bowman, 190 U. S. 127, 136
(1903), and is not a problem unique to the South, see Katz,
Aisenbrey, Baldwin, Cheuse, & Weisbrodt, Documenting Dis
crimination in Voting: Judicial Findings Under Section 2 of
The Voting Rights Act Since 1982, 39 U. Mich. J. L. Reform
643, 665 (2006). The other evidence relied on by Congress,
such as § 5 enforcement actions, §§ 2 and 4 lawsuits, and fed
eral examiner and observer coverage, also bears no resem
blance to the record initially supporting § 5, and is plainly
insufficient to sustain such an extraordinary remedy. See
SLF Brief 18–35. In sum, evidence of “second generation
barriers” cannot compare to the prevalent and pervasive vot
ing discrimination of the 1960’s.
This is not to say that voter discrimination is extinct. In
deed, the District Court singled out a handful of examples of
allegedly discriminatory voting practices from the record
made by Congress. See, e. g., Northwest Austin Municipal
Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 252–254,
256–262 (DC 2008). But the existence of discrete and iso
lated incidents of interference with the right to vote has
never been sufficient justification for the imposition of § 5’s
extraordinary requirements. From its inception, the stat
ute was promoted as a measure needed to neutralize a co
ordinated and unrelenting campaign to deny an entire race
access to the ballot. See City of Boerne, 521 U. S., at 526
(concluding that Katzenbach confronted a “widespread and

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persisting deprivation of constitutional rights resulting from
this country’s history of racial discrimination”). 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.
The burden remains with Congress to prove that the
extreme circumstances warranting § 5’s enactment persist
today. A record of scattered infringement of the right to
vote is not a constitutionally acceptable substitute.
* * *
In 1870, the Fifteenth Amendment was ratified in order to
guarantee that no citizen would be denied the right to vote
based on race, color, or previous condition of servitude.
Congress passed § 5 of the VRA in 1965 because that promise
had remained unfulfilled for far too long. But now—more
than 40 years later––the violence, intimidation, and subter
fuge that led Congress to pass § 5 and this Court to uphold
it no longer remains. An acknowledgment of § 5’s unconsti
tutionality represents a fulfillment of the Fifteenth Amend
ment’s promise of full enfranchisement and honors the suc
cess achieved by the VRA.