High court rules narrowly in voting rights case

AAS 6/23/09

High court rules narrowly in voting rights case

WASHINGTON — The Supreme Court ruled narrowly Monday in a challenge to the landmark Voting Rights Act, exempting a small Texas governing authority from a key provision of the civil rights law but side-stepping the larger constitutional issue.

The court, with only one justice in dissent, avoided the major constitutional questions raised in the case over the federal government's most powerful tool to prevent discriminatory voting changes since the mid-1960s.

The law requires all or parts of 16 states, mainly in the South, with a history of discrimination in voting to get approval in advance of making changes in the way elections are conducted.

The court said that the Northwest Austin Municipal Utility District No. 1 in Austin, Texas, can opt out of the advance approval requirement, reversing a lower federal court that found it could not.

SCOUTS blog 6/23/09
Section 5 survives

With only one Justice voting to strike down Congress’s 25-year extension of the Voting Rights Act’s controversial Section 5, the Supreme Court on Monday interpreted the law in a way that saves it. The Court said that all local units of government must be given the option to bail out of the requirement that they get Washington approval for any changes in their election laws or methods.

Chief Justice John G. Roberts, Jr., writing for an eight-member majority in Northwest Austin Municipal Utility District v. Holder (08-322), said that Section 5 has achieved "historic accomplishments," but "now raises serious constitutional concerns."

And, he said, while the Court would not shrink from its duty to apply the Constitution to block “legislative encroachments,” the Court also was obliged to decide a case by interpreting the scope of legislation if that route is available as an alternative to striking down the law altogether. That is the option it chose.

NY Times 6/22/09
Justices Let Stand a Central Provision of Voting Rights Act

By DAVID STOUT
Published: June 22, 2009

WASHINGTON — The Supreme Court on Monday let stand a central provision of the Voting Rights Act of 1965, declaring that there was no need at the moment to decide whether that provision was still constitutional in light of the fundamental changes that have swept across the South in recent decades.

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More important, the court noted: “Since 1982, only 17 jurisdictions — out of the more than 12,000 covered political subdivisions — have successfully bailed out of the act. It is unlikely that Congress intended the provision to have such limited effect.” Exactly which political units will be able to "bail out" of Section 5 will probably require detailed examination.

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"The utility district brought this case to tear out the heart of the Voting Rights Act," said Mr. Adegbile, who argued the case before the high court. "Today, it failed."

Jerry H. Goldfeder, adjunct professor of election law at Fordham Law School, said the court "has essentially granted the Voting Rights Act a stay." Since the court sidestepped the issue of constitutionality, “the law’s continuing viability is assured for the foreseeable future,” said Mr. Goldfeder, who is special counsel at Stroock & Stroock & Lavan and the chairman of the Election Law Committee of the Association of the Bar of the City of New York.

Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee, issued a statement expressing relief at the ruling and saying that if the court had overturned Section 5, it would have been guilty of "judicial activism."

Washington Post 6/22/09
Supreme Court Rules Narrowly on Voting Rights Act

By Robert Barnes
Washington Post Staff Writer
Monday, June 22, 2009; 12:27 PM

The Supreme Court today reached a compromise on the Voting Rights Act that allowed it to sidestep the question of whether a key provision of the landmark civil rights legislation remains constitutional at a time when the nation's racial politics have changed forever.

Instead, the court decided that all political subdivisions covered by the provision have the right to prove that they do not discriminate, and thus would not need to have federal authorities approve election law changes.

That provision, called Section 5, is the heart of the act, and applies to Virginia, Alaska, Alabama, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas and parts of seven other states.

Civil rights activists had braced themselves for the conservative majority on the court to find Section 5 unconstitutional. But the court refused to do that on an 8-1 vote with only Justice Clarence Thomas, the court's only African American member, going that far. He said that "punishment for long past sins is not a legitimate basis" for imposing the act's toughest restrictions on mostly Southern states.

Yahoo News 6/22/09
High court rules narrowly in voting rights case

(snip)
Five months after Barack Obama became president, Chief Justice John Roberts said the justices decided not to determine whether dramatic civil rights gains means the advance approval requirement is no longer necessary. That larger issue, Roberts said, "is a difficult constitutional question we do not answer today."

Debo Adegbile, the NAACP Legal Defense and Educational Fund lawyer who argued for the preservation of the law at the high court, said, "The fact is, the case was filed to tear the heart out of the preclearance provision of the Voting Rights Act and that effort failed today."

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The court's avoidance of the constitutional question explains the consensus among justices in the case rendered Monday, where they otherwise likely would have split along conservative-liberal lines.

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Roberts himself noted that blacks and whites now register and turn out to vote in similar numbers and that "blatantly discriminatory evasions of federal decrees are rare."

He attributed a significant share of the progress to the law itself. "Past success alone, however, is not adequate justification to retain the preclearance requirement," Roberts said.

Still, the court did not, decide that question in what Justice Ruth Bader Ginsburg recently described as "perhaps the most important case of the term."

NPR Legal Affairs
Court Sidesteps Major Ruling Over Voting Rights Act

NPR.org, June 22, 2009 · The Supreme Court decided Monday that a small utility district in Texas may be exempt from provisions of the Voting Rights Act, sidestepping a decision on the constitutionality of the 1965 law that protects the voting rights of minorities.

Under the law, all or part of 16 states — which are mainly in the South and have a history of discrimination in voting — are required to get advance approval from the Justice Department or a federal court if they want to change their voting procedures. But the justices ruled that the tiny Northwest Austin Municipal Utility District No. 1 in Austin may apply to opt out of the advance approval requirement.

The 8-1 decision may mean more governmental entities in the 16 states covered under the law will seek exemptions.

Chief Justice John Roberts said the utility district could apply for exemption, even though it does not register voters. The law was primarily intended to ensure that black and other minority voters were not prevented from voting by states, counties and parishes where voter registration takes place.

The law was adopted at the height of the civil rights movement, and Congress voted in 2006 to extend it for 25 years.

Texas Observer blog 6/22/09
Supreme Court Spares Voting Rights….For Now
(snip)

But, while Thomas may have been the only justice who wanted Section 5 killed today, all this decision has done is kick the eventual day of reckoning for the pre-clearance requirement a little farther down the road. When the next challenge comes — and it will, given the dedication and deep pockets of the conservative groups that bankrolled the Austin MUD case — the court may have no choice but to tackle the constitutionality of Section 5 head-on. And it is on that day that the real divisions on the court likely will be laid bare.

Today’s decision is probably the best-case outcome for Section 5 proponents (which may explain the four liberal justices’ conspicuous silence in the opinions). Justice Anthony Kennedy — a potential swing vote who had expressed concerns over the provision during oral arguments — could have sided with the four conservative justices to strike down Section 5. For now, his feelings on the subject will remain hidden.


(snip)
This also means that the state of Texas — which has no realistic hope of qualifying for the bailout provision as it’s currently written — will continue to be required to seek pre-approval for any statewide changes to its voting laws. This is of particular concern, since in the absence of Section 5, controversial measures such as voter ID laws and proof-of-citizenship requirements would have been allowed to go into effect before they could be challenged in court.

TCRP HAILS SUPREME COURT RULING IN AUSTIN CASE, LEAVING THE VOTING RIGHTS ACT INTACT
Statement by Jim Harrington, TCRP Director:

"We are very pleased that the U.S. Supreme Court ruled as narrowly as it did in the challenge by Northwest Austin Municipal Utility District No. 1 to the Voting Rights Act. That law has long been a very powerful tool against discriminatory voting practices throughout the country and Texas.

"As a result of the Voting Rights Act, Texas' minority communities have been able to vote and exercise the franchise in an effective way that assures their participation and representation in the political, democratic life of the community. The clearest proof of this, of course, is the dramatic change in representation in the state legislature and in school boards, county commissioner courts, municipalities, and all elected positions across Texas.

"The Voting Rights Act is still needed to make sure there is no back-sliding from those important gains and as reminder to political leaders that every time they make changes that affect voting and elections they need to measure their actions against the standards of that law to assure that Mexican Americans, African Americans, and all minority communities have proper representation in the political life of the community, which, in turn, opens the door to broader areas of participation in this state.

"Texas has had a long, brutal, and shameful history of denying the right to vote and creating mechanisms to undermine and deny proper representation. The Voting Rights Act has helped reverse that sad saga and set history right."

Texas State Conference of NAACP Branches
1107 E. 11th Street, Ste. A., Austin, TX 78702
Tel. 512-322-9547

FOR IMMEDIATE RELEASE: June 23, 2009
CONTACT: State Office (512) 322-9547
Gary Bledsoe (512) 322-9992
Robert Notzon (512) 474-7563

CALL FOR INFORMATION ON VOTING IRREGULARITY

Following the Supreme Court’s decision yesterday in Northwest Austin Municipal Utility District Number One v. Holder, the Texas State Conference of NAACP Branches applauds the decision in so far as the Court upheld the constitutionality of Section 5 of the VRA. Section 5 has been indispensable in providing the minority communities in Texas with a buffer against the insidious and apparently untiring efforts to reduce or remove the voting rights of the members of our communities.

The Supreme Court wrote further to indicate their finding that the kinds of harm that Section 5 was meant to address are no longer occurring. The Texas State Conference of NAACP Branches has a different experience and therefore respectfully disagrees with this finding and in response calls for information from all voters in Texas that have information about voting irregularity in their jurisdictions so that we may further document and chronicle the experience of Texans in an effort to continue to provide an accurate and timely basis for the continued application of Section 5 of the VRA to protect and promote free and fair elections in Texas. If you have information regarding voting irregularities please contact the Texas State NAACP office at (512) 322-9547.

The Texas State Conference of NAACP Branches further announces that it will be conducting hearings at various locations across Texas to chronicle the experiences of Texas Voters over the next six months.

ACLU-TX press release
Supreme Court Preserves Voting Rights Act Oversight Provision

FOR IMMEDIATE RELEASE
June 22, 2009

Contact: Dotty Griffith, Public Education Director, ACLU Foundation of Texas
(512) 478-7300 x 106 or 923-1909; dgriffith @ aclutx.org
Maria Archuleta, (212) 519-7808 or 549-2666; media @ aclu.org

ACLU of Texas Legal Director Lisa Graybill Says Decision Helps Ensure Equal Voting Rights for All Texans

AUSTIN -- In an 8-1 vote today, the Supreme Court left in place the preclearance requirements (Section 5) of the Voting Rights Act in a case brought by the Northwest Austin Municipal Utility District Number One.

"For more than 40 years, Section 5 has been a critical element of perhaps the most successful civil rights statute this country has ever enacted," said Steven R. Shapiro, legal director of the ACLU. "As Chief Justice Roberts recognized, the Voting Rights Act has been instrumental in reducing voting discrimination, increasing minority voter registration, and multiplying the number of minority officeholders throughout the nation. But, as Congress recognized when it reenacted Section 5 only three years ago, voting discrimination is sadly not a relic of the past and Section 5 therefore continues to play a vital role in ensuring that all citizens have an equal right to participate in the political process."

The American Civil Liberties Union had intervened in the case, Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), to defend Section 5 on behalf of an African-American voter who lives in an Austin utility district that had asked for the preclearance provision to be declared unconstitutional.

"The district was, in effect, asking the Supreme Court to declare Section 5 unconstitutional because it has been successful," said Laughlin McDonald, director of the ACLU¡¯s Voting Rights Project. "The Supreme Court declined that invitation. Moreover, by liberalizing the bail-out provisions of the Voting Rights Act, today¡¯s decision makes it more difficult for jurisdictions covered by Section 5 to complain that there is no escape from its preclearance requirements."

Under Section 5 of the Act, jurisdictions with a history of voting discrimination must obtain approval from either the Justice Department or a federal court before implementing any changes in their voting practices or procedures.

"We have made progress, in Texas and elsewhere," said Lisa Graybill, legal director of the ACLU of Texas. "But we have not eliminated voting discrimination, or the need for vigilance in combating it. Today's decision will help to ensure equal voting rights for all Texans."

The Court ruled that Northwest Austin Municipal Utility District No. 1 was entitled to seek a statutory bail-out from the preclearance requirements of Section 5, and that a successful bail-out would enable it to avoid the requirements of Section 5 without any need for the Court to address the constitutionality.

The Voting Rights Act was first adopted by Congress in 1965, and Section 5 has been extended on four separate occasions. Most recently, overwhelming and bipartisan majorities in both the House and Senate voted in 2006 to extend Section 5 for another 25 years after conducting extensive hearings on the ongoing problem of discrimination in voting.

It was widely expected that the Supreme Court would rule on the constitutionality of Section 5 in the case. Instead, in an opinion written by Chief Justice Roberts, the Court declined to decide the constitutional question and instead resolved the case on narrower grounds.

Under the Voting Rights Act, "political subdivisions" can "bail out" of the preclearance provision of Section 5 if they can demonstrate they have not discriminated against minority voters for a 10-year period. The Court today held that the municipal district in this case was a political subdivision entitled to seek a bail out and therefore able to avoid the requirements of Section 5. Because a successful bail out would enable the district to avoid the requirements of Section 5, the Court concluded that it was unnecessary for it to address the constitutionality of the preclearance requirement.

Attorneys representing the African-American voter include Shapiro of the national ACLU, McDonald of the ACLU Voting Rights Project, Graybill of the ACLU Foundation of Texas, Arthur B. Spitzer of the ACLU of the National Capital Area, and Michael Kator and Jeremy Wright of Kator, Parks & Weiser, P.L.L.C.

For more information on this case, including legal briefs, go to: www.aclu.org/votingrights/minority/37008lgl20090302

More information of the work of the ACLU Voting Rights Project is available at:

www.votingrights.org

AAS Editorial 6/25/09

Editorial: VOTING RIGHTS ACT
Hanky-panky is alive and well
Editorial Board
Thursday, June 25, 2009

(snip)
"Some of the conditions that we relied upon in upholding this statutory scheme unquestionably improved. Things are changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels."

All that is true enough, but experience in Texas with the unprecedented makeover of congressional districts in 2003 — done by a compliant Texas Legislature at the behest of then-Majority Leader Tom DeLay — shows that the willingness of majority parties to engage in partisan hanky-panky hasn't died, nor is that willingness showing signs of even the faintest of illness.

Some argue that a proposal to require voter identification in Texas is a revival of the poll tax. While that might be a bit of hyperbole, the viewpoint is understandable given the state's history of stepping on minority voter rights.

With due respect to the chief justice, things are better but not so good that the need for federal oversight of Texas elections is — like voter literacy questions — a thing of the past.