New challenge to Voting Rights Section 5
on Sep 12, 2006 at 9:30 pm
This is another in a continuing series of reports on the impact that Supreme Court decisions may have on later cases. The precedent mainly at issue in the following discussion is South Carolina v. Katzenbach, a 1966 decision upholding Section 5 of the Voting Rights Act of 1965 — the law that requires states (and local governments) that formerly discriminated in voting on the basis of race to get any changes in election law cleared in advance either by the Justice Department or by a federal court in Washington. The following post was prompted by discussions of the constitutionality of Section 5 by Richard L. Hasen, professor at Loyola Law School in Los Angeles and a blogger on his highly regarded Election Law site. See here for Rick’s latest discussion in a post that includes a link to the complaint in the lawsuit discussed below, and a link to an article he wrote in 2005 on the subject for the Ohio State Law Journal.
On July 27, President Bush signed into law the Voting Rights Act Reauthorization and Amendments Act of 2006, passed by Congress as H.R. 9. “By authorizing this act,” the President said, “Congress has reaffirmed its belief that all men are created equal; its belief that the new founding started by the signing of the [1965] bill by President [Lyndon] Johnson is worthy of our great nation to continue.” The original Act, President Bush said, “broke the segregationist lock on the ballot box.”
In passing the new law, Congress declared that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.”
Thus, the new law extends the act for 25 years, including the pre-clearance requirement specified in Section 5 for states and local government bodies covered by the act — mainly, but not exclusively, in the South. Loyola law professor Rick Hasen for some time has been exploring questions about Congress’ authority to extend the law in an era when “most of the original racist elected officials are out of power,” and when there remains not much evidence of “recent state-driven discrimination,” thus raising questions about whether preclearance remains necessary. He has predicted that the constitutionality of Section 5 will one day return to the Supreme Court
A lawsuit filed in U.S. District Court in Washington on Aug. 4 — eight days after the President signed the extension — could set the stage for such a test. It is Northwest Austin Municipal Utility District Number One v. Gonzales (District Court docket 06-1384). A week ago, Chief Judge Douglas H. Ginsburg of the D.C. Circuit assigned the case to a three-judge District Court panel — Circuit Judge David S. Tatel and U.S. District Judges Paul L. Friedman and Emmet Sullivan (docket entry 7).
The Austin unit, a political subdivision of the state of Texas, provides water service, operates a local park, and provides other local services in Austin. The state of Texas and its subdivisions are covered by Section 5, so the utility district is covered, too. The complaint contends that “the conditions that caused Texas to be covered…have long been remedied. Nonetheless, Texas and every political subdivision in Texas (including the district) continue to be covered by Section 5 because of conditions that have been remedied for over thirty years.”
Because the utility district has an elected board, any changes it wishes to make in its voting procedures must be precleared in Washington. The district asserts that it “does now and has always supported full and open voting rights for all residents of the district and, consequently, does not believe that continued submission to the burdensome and costly preclearance provisions is either necessary or constitutionally proper.” Even if a change is so small as to move a polling place across the street, the lawsuit notes, it must get Washington approval. The district itself had to get preclearance, it says, to move a voting location out of a residential garage and into a public school, “a move that was calculated to increase public access to the ballot box.”
Because there is seldom an official objection to changes in local voting practices, the complaint says, the preclearance requirement “represents a vast waste of public monies and resources which usually results in preclearance after an unnecessary but inevitable delay.”
The lawsuit is only partly a constitutional assault on Section 5. The district first argues that it should be entitled to come out from under the law’s coverage, under “bail-out” procedures specified in the act itself. It meets the statutory tests for bailing out, and has never encountered an objection from the U.S. attorney general to any change, the district says.
If the court finds that the district does not qualify for bail-out, according to the complaint, then Section 5 “is a trap in which conditions that existed three or four decades ago, but which have long since been remedied, are the sole basis for continuing a burdensome imposition on the sovereign rights of political subdivisions in covered jurisdictions.” That trap, it goes on to suggest, makes Section 5 unconstitutional.
The Section “lacks any continuing justification and is nothing more than a badge of shame that Congress, without any cognizable justification, has chosen to continue in place.” In extending the act, it adds, “Congress incongruously and irrationally opted to continue preclearance under a now ancient formula…”
Although it concedes that the Supreme Court had upheld Section 5 in the beginning, it argues “more than a generation later, it is both arbitrary and irrational for Congress to continue preclearance and, worse, under the same coverage formula established by a bygone era. Times have changed, and Section 5 should now be struck down as unconstitutional, either on its face, or as applied to the district….Section 5 is no longer a ‘congruent and proportional’ remedial exercise of Congress’s enforcement power.”
