High Court Set To Consider Case Challenging Voting Rights Act

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.

The Supreme Court's decision likely will turn on its answers to two fundamental questions. First, to what extent will the Court continue to defer to Congress's judgment that the Section 5 remedy still is needed? Second, did Congress amass a sufficient record to justify reauthorization?

In each of its previous decisions upholding Section 5, the Court deferentially reviewed Congress's factual findings. The utility district, nonetheless, points to the Court's 1997 decision in City of Boerne v. Flores where, the district asserts, the Court adopted a more skeptical standard for assessing Congress's authority to adopt civil rights legislation pursuant to the Fourteenth Amendment. This standard requires that Fourteenth Amendment legislation be "congruent and proportional" to the constitutional right being protected.

Section 5, however, was enacted principally to enforce the Fifteenth Amendment and, as argued in briefs filed by the Justice Department, the Lawyers' Committee, and the ACLU, this should prompt the Court - for both precedential and policy reasons - to maintain its prior deferential approach. The Fourteenth Amendment makes a broad array of rights enforceable against the states, and the Court has expressed concern that, in seeking to enforce these rights, Congress may exceed its powers by attempting to expand their scope. Section 5, on the other hand, targets the precise evil addressed by the Fifteenth Amendment. Furthermore, in seeking to enforce the Fifteenth Amendment, Congress has acted to redress an evil of unsurpassed significance: racial discrimination, the most suspect conduct in American jurisprudence; and discrimination in voting, among the most dangerous since it undermines the constitutional right the Supreme Court has called the right "preservative" of all others.

As to the second question, Congress compiled a massive record in 2005 and 2006 in support of reauthorization, but the parties disagree regarding how this record should be interpreted. The utility district contends that minority voters in the covered jurisdictions have made substantial progress and therefore, it asserts, Congress was obligated to either re-work the coverage formula or end what the district refers to as this "unparalleled federal intrusion" on state prerogatives. [Appellant's Brief at 2.] The Justice Department and defendant-intervenors agree that much progress has been made. However, as argued in their briefs, the improvements largely result from enforcement of Section 5 and other Voting Rights Act provisions, and the record compiled by Congress demonstrates that official discrimination in voting persists in the Section 5 jurisdictions. As especially documented in the brief submitted by LDF and MALDEF, the amount and types of continuing discrimination amply support Congress's determination that Section 5 still is needed, regardless of the standard of review employed by the Court.

For several reasons, therefore, the Supreme Court's decision in Northwest Austin Municipal Utility District Number One v. Holder is expected to be of far-reaching importance. As a practical matter, at stake is a civil rights statute that has shielded minority voters against the implementation of thousands of discriminatory voting changes since 1965. Jurisprudentially, the decision may further define the scope of Congress's authority to enforce the Reconstruction Amendments. And symbolically, the decision likely will be viewed as a significant statement by the Court as to how it views the federal government's obligation to serve as a continuing guardian of minority civil rights.