By Mark A. Posner, Senior Fellow, Lawyers' Committee for Civil Rights Under Law; Former Special Sec. 5 Counsel, Civil Rights Division, U.S. Department of Justice
On April 29, 2009, the Supreme Court will hear oral argument in Northwest Austin Municipal Utility District Number One v. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act of 1965. [Section 5 is found at 42 USC 1973c.] The Court's decision, expected in late June, will be one of its most important this term. The Voting Rights Act has had a transformative effect on political participation in this country, and Section 5, as the Court previously has recognized, lies at the "heart" of this landmark legislation.
Section 5 requires certain jurisdictions with a history of voting discrimination to obtain federal preclearance, from either the Justice Department or the U.S. District Court for the District of Columbia, before implementing any change in a voting practice or procedure. Preclearance is obtained by demonstrating that the change does not have a discriminatory purpose or effect. The covered jurisdictions include all or parts of 16 states located primarily in the South and Southwest.
On four previous occasions the Supreme Court has upheld Section 5, first following its enactment in 1965 and then after its reauthorization in 1970, 1975, and 1982. In 2006, overwhelming bipartisan majorities in both the House and Senate voted to once again reauthorize the statute, until 2031. The utility district filed suit shortly after the bill was signed into law, and a three-judge panel of the D.C. District Court unanimously found the reauthorization to be constitutional. [557 F. Supp. 2d 9 (2008).] The utility district then appealed to the Supreme Court.
The plaintiff is a small tax district located in suburban Austin, Texas with an elected board of directors. The entire State of Texas is covered by Section 5 due to the state's extensive history of discrimination and the utility district, accordingly, is subject to the preclearance requirement, though its Section 5 history largely has involved obtaining preclearance for only a few polling place changes. The defendant is the Attorney General, joined by seven groups of defendant-intervenors represented by a "who's who" of civil rights organizations, including the Lawyers' Committee for Civil Rights Under Law, the NAACP Legal Defense and Educational Fund (LDF), the Mexican American Legal Defense and Educational Fund (MALDEF), and the American Civil Liberties Union (ACLU). Eighteen amicus briefs have been filed in support of defendant-appellees, six have been filed for plaintiff-appellant, and two favor neither side. Notably, several covered states submitted a joint brief in support of Section 5, but none filed in opposition.