Patterico's Pontifications

1/11/2009

Supreme Court Accepts Voting Rights Case

Filed under: Civil Liberties,Law — DRJ @ 3:59 pm



[Guest post by DRJ]

The Austin American-Statesman reports the U.S. Supreme Court granted cert in a Texas case, Northwest Austin Municipal Utility District No. 1 v. Mukasey (08-322), that could be one of the most important election law cases in recent years.

The Voting Rights Act of 1965 was passed during LBJ’s Administration to protect citizens from racial discrimination in voting. The Act has been amended 4 times, including as recently as 2006, to remedy vestiges of discrimination. Section 5 of the Act applies to 16 predominantly Southern states and requires preclearance for changes to any voting laws:

“Section 5 is a special provision of the statute (42 U.S.C. 1973c) that requires state and local governments in certain parts of the country to get federal approval (known as “preclearance”) before implementing any changes they want to make in their voting procedures: anything from moving a polling place to changing district lines in the county.

Under Section 5, a covered state, county or local government entity must demonstrate to federal authorities that the voting change in question (1) does not have a racially discriminatory purpose; and (2) will not make minority voters worse off than they were prior to the change (i.e. the change will not be “retrogressive”).”

Texas is one of the states that is still subject to Section 5 of the Voting Rights Act. Thus, when the Northwest Austin Municipal Utility District No. 1 (“MUD”) serving 3,500 residents wanted to change a polling place from a garage to a school, it was required to get preclearance from the DOJ. “It took two months and cost $1,250 in legal fees.”

MUD sued the federal government claiming the Section 5 preclearance requirement is no longer necessary:

“The provision fails to acknowledge progress made in race relations over the past four decades, not to mention the recent election of the nation’s first African American president, said Greg Coleman, an Austin lawyer representing the utility.

“Section 5 says, you people in part of the country, because of what your grandfathers did, you cannot be trusted even to enact the smallest change in voting policies and procedures without submitting them to the federal government,” said Coleman, a former Texas solicitor general.

“It’s kind of a badge of shame, actually,” he said.”

MUD’s attorney points out that this challenge to Section 5 will not affect the other requirements of the Voting Rights Act, but a legal analyst notes Section 5 has a modified burden of proof:

“Coleman said that overturning Section 5 would not affect other Voting Rights Act provisions that protect voters nationwide. “It would not relieve us of any other obligations under the act,” he said.

True, said [Richard Hasen, a professor who specializes in election law at] Loyola Law School, but other provisions require people to file suit and prove that they were discriminated against. “Section 5 puts the burden on governments to prove there is no discrimination,” Hasen said.”

It looks like an interesting term at the Supreme Court.

— DRJ

7 Responses to “Supreme Court Accepts Voting Rights Case”

  1. Unfortunately, like many cases that have come, and will come before the SC, this one will most probably be decided by one frickin guy–Kennedy. The four conservative members will say “44 years has been long enough, let’s get off their backs and let them freakin decide to move a damn polling place from a GD garage to a bleepin school, duh!” While the four libs will shriek “raaaaaaacism, raaaacism — we can’t trust the no good southerners not to discriminate!! If they want to change the bleepin pencils used to mark the ballots they gotta come to the Federal Government to get approval first.” That leaves Kennedy to decide the outcome. God Help us, God help us all. We are so freakin screwed!!!

    J. Raymond Wright (e8d0ca)

  2. “Section 5 says, you people in part of the country, because of what your grandfathers did…”

    I am no lawyer but is sounds worse to me than that. Does section 5 really assume that all ancestors of all residents discriminated? Surly some grandfathers did not discriminate, yet all residents (even the illegal ones) have to indirectly pay higher legal fees because some peoples grandfathers did something wrong. In other words, by not identifying the people who did something wrong and punishing them, they are lumping people into a group based on geography and punishing them. To me, that sounds like discrimination.

    tyree (fab058)

  3. The irony of this, is that Austin is one of the more “blue” areas of Texas.
    If they are guilty of any type of discrimination, it would be against conservatives.

    AD (f2ee3d)

  4. What’s unfortunate is that this case does not seem like a particularly good vehicle to get a pro-bailout ruling from. Because the utility district does not handle their own voter registration they aren’t capable of qualifying for that provision. Much as I dislike the 25 year extension I think the panel got it right in this case. :/

    Soronel Haetir (cabedb)

  5. I don’t care anymore. Democrats each get to vote 8 times. Its all bulls()*. Welcome to the great Socialist Republic

    red (c80113)

  6. How is a federal law that is applicable only to certain states constitutional?

    XBradTC (2b6769)

  7. […] blogged on this case earlier here and (tangentially) […]

    Patterico’s Pontifications » Supreme Court Decides Voting Rights Act Case (e4ab32)


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