Supreme Court to Re-examine Voting Rights Act
Northwest Austin Municipal Utility District No. 1 v. Holder, et al., No. 08-322 -
Will archconservatives on the Court use this case as a vehicle to turn its back on minority voters, re-assert "states' rights" and reject the federal oversight needed to protect voting rights? Supreme Court hears arguments on April 29.
The landmark Voting Rights Act (VRA), originally enacted into law in 1965, establishes comprehensive safeguards against discrimination in voting based on race, color, national origin or language status. The Act is widely regarded as one of the most successful laws ever enacted by Congress.
Its most far-reaching provision requires that "covered" jurisdictions submit any changes in election practices for "preclearance" to either the attorney general or a three judge panel of the federal district court in Washington, D.C. One state subject to these requirements because of its history of discrimination against language minorities is Texas. The preclearance requirement, contained in Section 5 of the statute, was originally set to expire after five years, but was renewed by Congress in 1970 and, most recently, in 2006 (for 25 years). The constitutionality of the preclearance requirement has been repeatedly challenged by states and other jurisdictions, but each time (beginning in 1966) the Supreme Court has upheld it.
Enter the Northwest Austin Municipal Utility District Number One (MUD). A portion of the Voting Rights Act that works in tandem with the preclearance requirement is the "bailout" provision. This lets states and counties that are subject to preclearance ask the U.S. District Court in Washington, D.C. to release them from the preclearance requirement if they can demonstrate a ten-year record free of discrimination in voting. MUD -- because it is in Texas, a covered state -- is subject to preclearance and filed for a bailout, or, if it could not obtain a bailout, for a holding that Section 5 of the VRA is unconstitutional because the burdens it places on states and local governments are not justified by the record of discrimination Congress amassed.
MUD is an unlikely champion. It is located entirely within Travis County -- in fact, entirely within the City of Austin. Travis County's brief to the Supreme Court describes MUD in terms that demonstrate it is barely affected by the Voting Rights Act and has little connection to the grand arguments it is presenting about the constitutionality of this venerable law:
"It constitutes only a small part, less than one half of one percent, of Travis County's population. . . . It is governed by a 5-member board that is elected at-large to 4-year terms in non-partisan contests. It has no employees, and its current governmental functions are limited to providing payment of existing bonds and contracts and maintenance of the community park and walking trails within the District."
The District is also far less racially diverse and far wealthier than its surrounding county: "The combined African-American and Latino population of the district is 7%, compared to 37.2% for the County. The District's annual median family income of $103,200 is nearly double that of the County as a whole." Its elections are administered entirely by Travis County officials, and it has spent an average of less than $300 per year obtaining preclearance from the U.S. Attorney Genearal for changes it has sought to make in its voting practices. Its view that Section 5 is an unconstitutionally broad exercise of congressional power is actively opposed by its home county; indeed, Travis County intervened in the case to defend and praise Section 5 of the Voting Rights Act: "Section 5's strictures continue to contribute in a positive way to making the right to vote, free of racial discrimination, a reality in the elections [the county] administers."
MUD has also been aggressively opposed by the Department of Justice and a group of individuals and organizations led by the NAACP, who intervened to defend the statute. Four separate briefs were filed defending the constitutionality of Section 5 by the parties in the case. These briefs paint a portrait of the ongoing need for federal involvement in ensuring that the promise of the Fifteenth Amendment -- which bars discrimination based on race in voting -- is kept.
Based on the 15,000 page legislative record of documentation assembled by Congress, these briefs present examples and statistics supporting Congress' determination "that further enforcement of Section 5 is necessary because without its 'protections, racial and language minority citizens will be deprived of the right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.'" (U.S. Brief.) One remarkable fact highlighted by these briefs is that no jurisdiction covered by Section 5 -- no state and no county -- opposed extension of Section 5 by Congress in 2006, and none of the numerous amicus briefs in the case comes from such a jurisdiction.
Yet MUD's appeal to the Supreme Court of the U.S. District Court of the District of Columbia's decision rejecting its arguments, will likely resonate with some conservatives on the Court who have shown hostility to remedies for racial discrimination and a willingness to set aside congressional enactments on the basis that they lack adequate factual support.
The lower court's comprehensive opinion, some 137 pages detailing the impact of the Voting Rights Act in helping to deter discrimination in voting as well as the ongoing efforts to disenfranchise minority voters, was written by Judge David Tatel (appointed by Clinton), and joined by judges Paul Friedman (appointed by Clinton) and Emmet Sullivan (appointed by Bush I). The opinion finds that even if MUD is right in asserting that Congress must meet a higher factual standard to renew Section 5, Congress has more than met that standard with evidence of ongoing purposeful race discrimination as well as the powerful deterrent effect of Section 5's preclearance requirement.
The major question the Supreme Court will confront -- unless it finds that MUD is entitled, even though it's not a state or a county and never registers its own voters, to petition for a bailout -- is exactly what standard Congress must satisfy to exercise federal oversight of state and local voting.
Almost every opinion the Court has issued that mentions the Voting Rights Act praises it as a model of appropriate congressional action, so MUD should face an uphill battle. Yet MUD's brief bristles with language describing what it asserts Congress needed to do:
"Congress needed to ask whether state and local governments in covered jurisdictions remain generally so hellbent on depriving minorities of their voting rights that they presumptively cannot be trusted to enact fair voting practices and procedures without the federal Executive looking over their shoulder."
It remains to be seen whether a majority of the Supreme Court will view the most recent renewal of Section 5 as squarely within Congress's power to enforce the Fifteenth Amendment, or whether archconservatives on the Court will use this case as a vehicle to turn its back on minority voters, re-assert "states' rights" and reject the federal oversight that has provoked the resentment of one tiny utility district in Texas.
The case is set to be argued on April 29, and a decision is likely at the end of June.
