Posted May 14, 2009 by J. Gerald Hebert

Standing, Ripeness and the NAMUDNO case

I attended the oral argument the week before last in the Supreme Court of the United States in Northwest Austin Municipal Utility District Number One v. Holder, in which the Municipal Utility District (“MUD”) challenges the constitutionality of Section 5 of the Voting Rights Act and its preclearance requirements.  I filed an amici curiae brief in the case, supporting the constitutionality of the Voting Rights Act, on behalf of a number of Virginia jurisdictions that have “bailed out” from the Act’s preclearance requirements, via the bailout mechanism in Section 4 of the Act. 

As the argument began, I was heartened by probing questions from Justices Kennedy, Scalia, Souter and Ginsburg indicating that the MUD actually lacked standing to challenge Section 5.  First, Justice Kennedy asked whether, if the MUD was not statutorily authorized to seek a bailout from the preclearance requirements:  “do you really then have standing to proceed to question the workability of the bailout procedures” and “to question the validity of the Act”?  Tr. at 10.  Attorney Coleman, arguing for the MUD, did not answer the question directly, but instead responded by claiming that regardless of bailout coverage, the MUD clearly had standing because it remains subject to the preclearance requirements. 

Justices Scalia and Souter then seized on Coleman’s response, as it raised further serious questions about the MUD’s standing to bring suit:

JUSTICE SCALIA: Well, has preclearance been denied to you?

MR. COLEMAN: Well, we didn't seek a preclearance –

JUSTICE SOUTER: Exactly. I mean, I -- if -- if you're basing it simply on your objection to preclearance and there's no contest between you and the government over preclearing anything, I'm not sure why you would be in court.

MR. COLEMAN: Well, there is certainly a possibility we may seek to preclear things in the future, but this is primarily –

JUSTICE SOUTER: Then isn't -- isn't that the time for litigating?

MR. COLEMAN: No, Justice Souter. This is primarily a facial challenge to the statute. We are subject to the obligations of preclearance. And we believe that we –

JUSTICE SOUTER: But it's not affecting anything you're doing on a day-to-day basis, as I understand it. There's no claim that -- that your district is doing anything improper. No claim is being made against you. And I guess your whole argument would be maybe some day we want to preclear again, and maybe we wouldn't be as successful as we had been in each of the instances before. But I don't see how that gets you in court.

MR. COLEMAN: I agree with -- I disagree with that as well, Justice Souter. While it has not been highlighted in the briefs, there is deep in the record discussion during a MUD board meeting of potentially some changes, and discussion on that was table pending the outcome of this lawsuit.

JUSTICE GINSBURG: What was the last time the district applied for preclearance, the last year?

MR. COLEMAN: The contract in 2004 by which we asked the county to actually perform the elections itself, that was precleared, Your Honor.

JUSTICE GINSBURG: And so 2004 is the last year. So between 2004 and 2009 the district has not sought preclearance?

MR. COLEMAN: That's correct.

Transcript at 10-12. 

Surely regretting the line of questioning he had started, Justice Scalia – who just a moment earlier had noted that the MUD had not been denied preclearance – attempted to rescue Mr. Coleman.  Justice Scalia noted that the MUD was still subject to the preclearance requirements and thus had to seek approval from the Attorney General before implementing any voting changes.  But Justice Souter pressed on with this exchange:

JUSTICE SOUTER: But the suit -- correct me if I'm wrong, and I may be wrong on this, but I thought this suit eventuated from the fact that you had been denied bailout and that your entire case was brought on the refusal of bailout. I did not understand that you had brought a general declaratory judgment action or a -- or a facial attack in gross, as it were, on the statute. Am I wrong about your pleadings?

MR. COLEMAN: I do think you're wrong about that, Justice Souter. We had not been denied bailout. The suit sought bailout. The only way to seek a bailout is through the lawsuit –

JUSTICE SOUTER: Right.

MR. COLEMAN: -- and this lawsuit seeks the bailout and the declaratory judgment that if we cannot bail out –

JUSTICE SOUTER: You separately asked for declaratory judgment?

MR. COLEMAN: Yes. There are different claims in the lawsuit, Your Honor.

Transcript at 12-13.

I was involved in this case at both the district court level (as counsel for defendant-intervenor Travis County) and, as noted above, at the Supreme Court level (as counsel for certain amici curiae).  Attorney Coleman’s representations to the Court, and to Justice Souter in particular, that the MUD’s challenge to Section 5 was a facial attack didn’t seem quite right to me.

My post-argument review of the MUD’s original complaint and the amended complaint, available here and here, confirms that the MUD’s constitutional challenge is as applied and not facial.  While the MUD originally had mounted both a broad facial challenge and an as applied challenge to Section 5’s preclearance requirements, the MUD’s amended complaint expressly focused that claim into an as applied challenge.  As explained below, the MUD explicitly acknowledged this change in their constitutional challenge in the court below.  So Justice Souter’s recollection of the how the constitutional challenge was framed was correct and attorney Coleman’s response to him was erroneous.

Here is the operative language from the original complaint: “23. The district recognizes that the Supreme Court upheld the original enactment of §5 against constitutional challenge.  But when Congress originally enacted the preclearance requirements, and even when they were previously reauthorized in 1982, the conditions justifying preclearance were still very recent.  But now, more than a generation later, it is both arbitrary and irrational for Congress to continue preclearance and, worse, under the same coverage formula established in a bygone era.  Times have changed, and §5 should now be struck down as unconstitutional, either on its face, or as applied to the district.” Original Complaint at ¶23. (emphasis added).  

Compare this language from the MUD’s original complaint to the language in the superseding, as-applied challenge in the Amended Complaint: “23. The [municipal utility] district recognizes that the Supreme Court upheld the original enactment of §5 against constitutional challenge. But when Congress originally enacted the preclearance requirements, and even when they were previously reauthorized in 1982, the conditions justifying preclearance were still very recent. But now, more than a generation later, it is both arbitrary and irrational for Congress to continue preclearance and, worse, under the same coverage formula established in a bygone era. Times have changed, and §5 cannot now be constitutionally applied to the district.”  Amended Complaint at ¶23 (emphasis added).

In its prayers for relief in the Amended Complaint, the MUD also makes clear that its challenge is an as applied challenge only: “Plaintiff requests the Court to declare that the district has met the bail-out requirements of §4 of the Voting Rights Act and that the preclearance requirements of §5 of the Act no longer apply to the district; or, in the alternative, that §5 of the Act as applied to the district is an unconstitutional overextension of Congress’s enforcement power to remedy past violations of the Fifteenth Amendment, and all other relief to which the district may show itself to be entitled.” Amended Complaint Prayer for Relief (emphasis and underline added). 

When the MUD sought to amend its complaint, the MUD filed a motion (see here) for leave to amend the complaint and made it abundantly clear that the MUD plaintiffs were not bringing a facial challenge.  The MUD wrote: “The changes proposed in the first amended complaint merely clarify and narrow the issues to be litigated in this action. In particular, the district has attempted to clarify the nature of its constitutional claim and has removed any wording that might have given opposing litigants the impression that the district was alleging a facial challenge to the constitutionality of §5 of the Voting Rights Act in addition to the district’s allegation that §5 may be unconstitutional as applied to the district.”  Plaintiff’s Motion For Leave To File Amended Complaint at 2 (emphasis added).

The district court eventually construed the MUD’s complaint as a facial attack (see here), noting:

“Before addressing the District’s constitutional claim, we must determine whether its challenge is facial, as applied, or both. In its original complaint, the District argued that section 5 should “be struck down as unconstitutional, either on its face, or as applied.” Compl. ¶ 23. In its amended complaint, however, the District reframed its case exclusively as an as applied challenge, leaving the parties and this court puzzled about the District’s intentions. Am. Compl. ¶ 23.”  District Court Opinion at 24. 

Despite the fact that plain and express language in the amended complaint, as the district court noted, “reframed its case as an as-applied challenge,” and even though the MUD made clear that its challenge to the Act was not a facial one, the district court treated the challenge as a facial one.  A court cannot convert a party’s plainly stated as applied challenge to a facial one absent some ambiguity in the pleadings.  Here, there was none. 

Getting back to the question Justice Souter posed to the MUD’s attorney, what if Mr. Coleman had responded to the Justice as follows: “we did not bring a facial challenge; we brought an as applied challenge.  The district court treated it as a facial challenge, however.”  Had the Court been provided with such a response, invariably there would have been further difficult questions for MUD’s counsel concerning how the case could proceed as an as-applied challenge when there were no facts showing that the Section 5 preclearance process was being applied to the MUD in a way that caused any injury or worked any hardship on the MUD – i.e., no objections by the Attorney General, no pending submissions to the Attorney General, and not even any future submissions contemplated by the MUD. 

Equally important, the hard questions posed by the Justices about standing and ripeness have not been answered by the MUD:  how can the MUD have standing to bring an as applied challenge to Section 5 when it has no voting change it wants to make (and has made none in 5 years), has no need to seek preclearance, and has not been denied preclearance to any voting change it wants to make?  Justice Scalia suggested that merely being subject to the Act’s preclearance requirements is enough to establish standing to mount a facial challenge, but that seems wrong, especially in looking at prior constitutional challenges to the Act and other Voting Rights Act challenges.  But it is critical in the context of this case – which, in fact, is an as applied challenge – that the Justices determine whether the MUD’s constitutional claim is ripe, in the absence of any voting change subject to preclearance, any objection from the Attorney General or even a preclearance submission by the MUD pending. 

Contrast the lack of any present, concrete injury to the MUD with the injury at issue in the City of Rome v. United States case, which the Court decided in 1980 and which included a constitutional challenge to the Voting Rights Act.   In that case, the City of Rome had been denied preclearance by DOJ, it then sought a declaratory judgment seeking preclearance, bailout, and alternatively, a judgment that the Voting Rights Act was unconstitutional. That scenario – not the theoretical harm claimed by the MUD in the pending case– is the correct posture to confer standing and ripeness to challenge the constitutionality of Section 5. 

Supreme Court precedent also supports the conclusion that the MUD’s claim is not ripe for review and should therefore be rejected.  Consider Texas v. United States, 523 U.S. 296 (1998), a Voting Rights Act case from Texas decided just 11 years ago.  In a unanimous opinion by Justice Scalia, the Supreme Court concluded that there was no case or controversy for lack of ripeness.  Texas v. United States concerned certain sections of the Texas Education Code.  Specifically, a new portion of the Texas Education Code provided that a master could be appointed to take over a school district (from an elected school board) that didn’t meet state-mandated educational attainment levels.  The state submitted this law for preclearance and the Department of Justice precleared it.  In the preclearance letter, the Department of Justice noted that parts of the law appeared to be enabling legislation and cautioned that  “under certain foreseeable circumstances … implementation [of some of the provisions of the law] may result in a violation of Section 5,” thus requiring preclearance for future implementation. 

The State then filed suit in federal district court in D.C. for a declaratory judgment that such future implementation of the law would not be subject to the preclearance requirements of the Voting Rights Act.  The State contended that § 5 did not apply to future measures pursuant to the Education Code provision at issue “because (1) they are not changes with respect to voting, and (2) they are consistent with conditions attached to grants of federal financial assistance that authorize and require the imposition of sanctions to ensure accountability of local education authorities.”

The District Court dismissed the case on the grounds that the State’s claim was not ripe, and the Supreme Court affirmed.  In an opinion for a unanimous Court, Justice Scalia noted that for a claim to be ripe, “it cannot be contingent upon future events that may not occur as anticipated or indeed may not occur at all.”  Id. at 300 (citation omitted).  Because the appointment of a master was contingent on certain circumstances, and those circumstances could not be foreseen and did not even appear likely, the Court concluded that the case “was not fit for adjudication.”  Id.  Justice Scalia went further still, observing that even if there was “greater certainty” that the Education Code provisions would be triggered, the case would still not be ripe.  Id.   He wrote: “The operation of the statute is better grasped when viewed in light of a particular application.  Here, as is often true, ‘[d]etermination of the scope ... of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function.’” Id. at 301 (citing Longshoreman v. Boyd, 347 U.S. 222 (1954)).  

The Supreme Court’s decision in the Texas v. United States also noted that the case was not ripe because is did not cause a sufficient hardship to the parties.  According to the Court: “This is not a case like Abbott Laboratories v. Gardner, . . . where the regulation at issue had a ‘direct effect on the day-to-day business’ of the plaintiffs, because they were compelled to affix required labeling to their products under threat of criminal sanction.   Texas  is not required to engage in, or to refrain from, any conduct, unless and until it chooses to implement one of the noncleared remedies.  To be sure, if that contingency should arise compliance with the preclearance  procedure could delay much needed action… But even that inconvenience is avoidable.  If Texas is confident that the imposition of a master or management team does not constitute a change affecting voting, it should simply go ahead with the appointment.  Should the Attorney General or a private individual bring suit (and if the matter is as clear, even at this distance, as Texas thinks it is), we have no reason to doubt that a district court will deny a preliminary injunction.”   Id. at 301-302 (citations omitted).

Like the MUD in the case now pending before the Court, the State in Texas v. United States argued that threats to its state sovereignty provided a sufficient hardship to establish standing and ripeness.  The Supreme Court roundly rejected that claim.  The Court observed that the State of Texas claimed “that it suffers the immediate hardship of a ‘threat to federalism’.  But that is an abstraction, and an abstraction no graver than the ‘threat to personal freedom’ that exists whenever an agency regulation is promulgated, which we hold inadequate to support suit unless the person's primary conduct is affected.”  Id. at 302.  If the Supreme Court finds that being a Section 5 covered jurisdiction is a sufficient stigma to constitute the injury necessary to establish standing, then it would appear to have opened up the law of standing to addressing claims of  “psychic injury.”  It is difficult to fathom that the conservatives on the Court would find that appealing – let alone consistent with their own previous standing jurisprudence.

The pronouncements and approach taken by a unanimous Court in Texas v. United States should be considered by the Court now as it decides the MUD case.  The claimed injury of the MUD – that, one day, it might have to seek preclearance of a voting change, even though the MUD has not done so for over five years and has no prospective change in the pipeline – is simply too remote and speculative to support the MUD’s present challenge.   

Just as in Texas v. United States, for the MUD to have standing to challenge the preclearance requirement and for such a challenge to be ripe, it must actually be blocked by the Attorney General from making a desired change affecting voting, or, at the very least, must make a change affecting voting and submit it for preclearance.  Otherwise, the federalism concerns raised by the MUD, as well as its other claimed harms, are – as in Texas v. United States – abstractions that are insufficient to support its suit.  Moreover, because there is no concrete burden or injury to the MUD at present, and because the MUD will be bailed out whenever Travis County bails out, there is simply no hardship to the MUD other than of “biding its time” – a “hardship” that the Supreme Court has squarely rejected as a basis for maintaining a Voting Rights Act preclearance suit.  (Travis County has made clear in its filing that it does not believe the time has come for the County to seek a bailout).  Indeed, the Supreme Court’s final observation in Texas v. United States seemingly addresses and perhaps forecloses the arguments made by the MUD and raised by four of the Justices at oral argument:  “we find the legal issues … not yet fit for our consideration, and the hardship to Texas of biding its time insubstantial.”  

The MUD case presents the Court with the opportunity to follow the approach taken in other ripeness and standing decisions and conclude that the MUD’s claims are premature.  We will know soon enough if the Court follows that course or instead substitutes its judgment for the considered judgment of Congress, which compiled an extensive 15,000 page record in deciding to extend §5 for twenty-five more years.