Section 5 survives for now
on Oct 25, 2009 at 8:35 pm
Congress’ 25-year extension of one of the most significant civil rights laws — the Voting Rights Act’s Section 5 — has averted another threat to its constitutionality. The test case that went to the Supreme Court — and in doing so put Section 5 at grave risk — is being settled, according to court papers filed earlier this month in U.S. District Court in Washington. The motion to enter a consent decree in Northwest Austin Municipal Utility District No. 1 v. Holder can be found here, and the text of the proposed decree is here. (Thanks to Rick Hasen of Election Law blog for the alert.)
A wide array of groups that had entered the case joined the federal government and the small Texas utility district in urging a three-judge District Court to approve the deal to end the case, with the district giving up — for now, at least — its claim that Section 5 is unconstitutional. All sides in the case asked that the consent decree be approved 30 days after it was filed — that is, no sooner than Nov. 6. That will provide a chance for protests to the decree to be filed.
After NAMUDNO (as the case is often called) was heard by the Supreme Court last April, Section 5 had appeared to be in deep jeopardy. An apparent majority of the Justices complained that the law had gone too far in keeping control on election processes in the states, counties and cities covered by the law, and that it was based on out-dated views of the situation in those jurisdictions. (For covered state and local governments, mainly in the South, no change of any kind in election procedures may be made without clearance in Washington, either by the Justice Department or by the District Court.)
But when the Justices’ final decision emerged on June 22, on an 8-1 vote, the Court did not strike down Section 5, but rather expanded local jurisdictions’ option of getting out from under Section 5 coverage. The Court did so, however, with sharp criticism of the law — an indication that, perhaps, its constitutionality might yet be challenged if Congress did not overhaul the law.
The case was formally returned to the District Court on Sept. 22, and in early October, the three-judge Court ordered lawyers to file a report by Oct. 16 “advising the Court how they wish to proceed in this case.” Within five days, however, the Justice Department, the utility district, and other parties in the case had reached the settlement, and filed for Court approval.
The solution to the case: the utility district was allowed to come out from under Section 5, based on a Justice Department finding that it had a record of non-discrimination in elections for at least the past ten years. Thus, the district’s first challenge — a protest against its previous ineligibility for a bailout — was remedied. On the second, constitutional challenge, the parties agreed that that claim should be “dismissed without prejudice.’ That does not bar its renewal at a later point, but it clears it away for the time being.
If the District Court approves the consent decree, that will be binding only on those involved in this specific case. If another jurisdiction is chafing under Section 5, it would be free to file its own constitutional challenge, seeking not just a bailout but nullification of the entire scheme under Section 5 so that it can make future election changes as it wishes — provided it does so without discrimination that could be challenged in court, perhaps under the Fifteenth Amendment.
