WASHINGTON (By Adam Liptak, NYT) January 9, 2009 — The Supreme Court on Friday agreed to decide whether a central provision of the Voting Rights Act of 1965 is still needed to protect minority voters, given the passage of more than four decades and the election of the nation’s first African-American president.
The court’s decision in the case, expected by June, will help define the Roberts court. Chief Justice John G. Roberts Jr. opposed efforts to expand the voting rights law in 1982 as a young lawyer in the Reagan administration, and he has expressed skepticism on the court about racial classifications made by the government.
The decision will also have significant practical consequences for elections in 16 states.
“This could be the biggest election law case on the court’s docket since Bush v. Gore,” said Richard L. Hasen, a professor at Loyola Law School in Los Angeles.
The case concerns the requirements in Section 5 of the law that certain state and local governments, mostly in the South, must obtain permission, or “preclearance,” from the Justice Department or a federal court before making any changes affecting voting.
The requirement applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and scores of counties and townships in other states that Congress found had a history of discrimination at the polls.
Critics of the law call the preclearance requirement a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.
The preclearance requirement, originally set to expire in five years, was upheld by the Supreme Court in 1966 as a rational response to the often flagrantly lawless conduct of Southern officials intent on “perpetuating voting discrimination in the face of adverse federal court decrees.”
Congress has repeatedly extended the requirement: for five years in 1970, then for seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years.
The lawsuit challenging the requirement was brought by a municipal utility district in Austin, Texas, that was established on undeveloped land there in the late 1980’s. The district said it had never been accused of voting discrimination and should not be made to seek federal permission to, say, move the location of polling places or consolidate voting for its five-member board with the larger county ballot.
A special three-judge court in Washington upheld the constitutionality of the preclearance requirement in May, saying that Congress had acted reasonably in making the judgment that voting discrimination persists.
“Despite significant progress — attributable in large part to the Voting Rights Act itself —Congress, having surveyed evidence from covered jurisdictions, determined that more remained to be done,” Judge David S. Tatel wrote for the unanimous panel. “We conclude that given the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions, Congress’s decision to extend section 5 for another 25 years was rational and therefore constitutional.”
The utility district argued to the Supreme Court that Congress had given insufficient weight to social and political changes since the civil rights era. It added that the applicable legal standards have changed since 1966.
There is no reason, the district’s lawyers told the Supreme Court, to presume “that jurisdictions first identified four decades ago as needing extraordinary federal oversight” today remain “uniformly incapable or unwilling to fulfill their obligations to faithfully protect the voting rights of all citizens in those parts of the country.”
In addition, the district argued, a 1997 Supreme Court decision, City of Boerne v. Flores, imposed a more demanding standard for deciding whether Congress exceeded its authority than mere rationality by requiring “congruence and proportionality” between the harm in question and the means used to prevent it.
The special court had ruled that the more relaxed level of scrutiny used by the Supreme Court to uphold the law in the 1966 case, South Carolina v. Katzenbach, should apply. But it added the recent extension of the preclearance requirement passed the more demanding “congruence and proportionality” test, too.
The Supreme Court can avoid the larger issue in the new case, Northwest Austin Municipal Utility District Number One v. Mukasey, No. 08-322, if it chooses to accept the utility district’s argument on a subsidiary point. The district says it should be entitled to relief under a provision in the voting rights law that allows political subdivisions with clean discrimination records for ten years to “bail out” from the preclearance requirement with court approval.
The special court said the provision is only available to government units that register voters, and the utility district does not.
The Bush administration filed a brief defending the law in November that urged the Supreme Court to affirm the lower court’s decision without further briefing and argument. (The Voting Rights Act contains unusual jurisdictional provisions, which account for the special lower court and which allow a direct appeal to the Supreme Court.)
“It was reasonable for Congress to extend the provision for long enough to collect sufficient information,” including from two decennial redistricting cycles, “to make a careful assessment about whether Section 5 is still necessary at the expiration of the current reauthorization period,” the brief said. “Congress’s judgment that an extension of that length is appropriate is entitled to respect.”
