[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