Will conservative activists in a small Texas utility district take down a key piece of American civil rights law?
In U.S. civil rights law, small, out-of-the-way places often have been thrust into the national spotlight and, with the bang of a chief justice’s gavel, become the stuff of legal legend. Virtually overnight, for instance, a board of education in Topeka, Kansas, can become the rallying cry of a movement.
This year, the canon of U.S. civil rights jurisprudence has a new applicant: Northwest Austin Municipal Utility District No. 1. In a few months, it could become known as the tiny political subdivision that killed Section 5 of the Voting Rights Act of 1965. A central provision of the landmark civil rights law, the section requires many state and local governments, primarily in Southern states, to seek federal approval of any changes to voting laws to ensure they don’t reduce minority rights.
Thanks to a lawsuit filed by the Austin MUD, located in the suburban Hill Country subdivision of Canyon Creek, Texas’ voting rights record, in all its dubious glory, is front and center before the Supreme Court. With the help of some deep-pocketed conservative groups, the MUD is seeking an exemption, or “bailout,” from the preclearance requirement of Section 5-or, barring that, to have Section 5 struck down entirely. The lawsuit contends that because the MUD has no history of discrimination, it shouldn’t be punished for racial discrimination in which it played no part.
The case appears destined for a 5-4 decision, with Justice Anthony Kennedy again serving as the swing vote between the liberal and conservative blocs of the court. Given the tenor of Kennedy’s questions during oral arguments on April 29, the future of this key provision of the Voting Rights Act could come down to whether Kennedy thinks Congress had sufficient evidence in 2006 to single out predominantly Southern areas for special federal scrutiny under a formula created more than 40 years ago.
The court has upheld these provisions four times in the past. But thanks to new faces on the bench and changing perceptions of racial discrimination in America, opponents see this as their best chance for a landmark victory.
“I think there’s been a fundamental change in the fabric of America,” says Gregory S. Coleman, lawyer for the Austin MUD. “I’m not saying there aren’t still problems that arise from time to time, but by and large Americans … want people of every intellectual persuasion, of every color, to go out, exercise their right to vote and take part in this American process we call politics.”
Debo Adegbile of the NAACP, who argued before the court in favor of Section 5, paints a decidedly different picture. “Politics and voting is about power,” he says. “And when the rules of the game can be manipulated, that power will lead to bad effects. Section 5 is about progress. It recognizes our history but knows that we can strive for more.”
Congress passed the Voting Rights Act to combat discrimination against minority voters through federal intervention in what had previously been the province of states and localities. Section 2 prohibits discriminatory voting practices and procedures, and allows aggrieved individuals anywhere in the nation to take their cases to federal court. Congress determined, however, that a more aggressive remedy was needed in parts of the country with particularly invidious histories of racial discrimination. So it devised a special remedy.
Section 5 requires advance federal approval of voting-related changes-such as moving or eliminating polling places, changing election times, or redrawing the boundaries of electoral districts-by states and political subdivisions that had limited voting in the 1964 elections through poll taxes or literacy tests. The affected areas also had voter registration and participation under 50 percent. Six Southern states and Alaska were covered entirely. Some counties and towns in four other states qualified.
Congress extended Section 5 in 1970 and 1975, when it also expanded coverage to include discrimination against “language minority groups”-a move that brought Texas, Arizona, and parts of six other states into the fold. Texas qualified because, in 1972, more than 5 percent of its voting-age citizens were Latino, its election materials were available only in English, and fewer than 50 percent of its voting-age citizens registered or voted.
As the Supreme Court wrote in 2006, “Texas has a long, well-documented history of discrimination that has touched upon the rights of African-Americans and Hispanics to register, to vote, or to participate otherwise in the electoral process.”
“The significance of Section 5 is enormous, especially in places like Texas” with large minority populations, says Michael Jude Pitts, a former Justice Department voting rights attorney who’s currently a law professor at Indiana University-Indianapolis. “It has ramifications for what every single political subjurisdiction in Texas does.”
Even Section 5’s harshest critics concede that the accomplishments of the Voting Rights Act have been remarkable. Minority voter registration and participation across the country have increased dramatically. African-Americans have been elected to public office in the South in significant numbers. In Texas, similar gains have been made by Latino voters and candidates-thanks in no small part to Section 5.
From 1982 to 2006, the U.S. Department of Justice ruled that at least 107 Texas voting changes were discriminatory, including 10 statewide actions-second only to Mississippi. At least another 54 proposed changes were withdrawn prior to a Justice Department ruling. Federal Section 5 lawyers have been particularly busy during Texas redistricting battles, when state map-drawers have had a habit of fragmenting some minority voting blocs and packing others into districts to minimize minority power elsewhere.
The Justice Department found that Texas’ post-1990 census district map was deliberately discriminatory. It also raised objections to newly created maps following the censuses of 1980 and 2000. (Parts of the 2003 redistricting were struck down by the Supreme Court in a Section 2 lawsuit; Section 5 was used to enforce the ruling in follow-up actions.)
In Waller County in 2004, Section 5 was used to prevent election officials from reducing an early voting period that would have limited participation of Prairie View A&M students who would be on vacation during primary day. The section prevented Seguin from altering voting-district lines and shortening candidate-filing periods after the 2000 census-actions designed to keep Latinos from gaining a majority on the city council. In 1990, the Justice Department blocked Freeport from instituting a majority-of-the-vote requirement for city council elections after a Latino-backed candidate received a narrow plurality. In 2006, Section 5 stopped the North Harris Montgomery Community College District, covering an area of more than 1,000 square miles, from reducing its number of polling sites from 84 to 12. If the change had been enacted, one polling place would have served 6,500 mostly white voters. Another, in an area that was 80-percent minority, would have accommodated 67,000.
According to Pitts, Section 5’s most important role is deterrence. “Everybody knows they have to go to Washington to get approval for changes,” he says. “And that means you’re going to do your darnedest to try to keep from running afoul of what the government requires in terms of protecting the place of minority voters.”
In 1982, when Congress extended Section 5 for 25 years, it expanded a provision allowing political subdivisions that oversee elections-counties, parishes, and independent cities-to “bail out” from preclearance requirements if they could demonstrate they’ve had a clean voting rights record for 10 years. Few districts have been allowed to bail.
Section 5 is not without its critics. Every time the Voting Rights Act has been renewed, the preclearance provision has been challenged in court as an unconstitutional and unnecessary infringement of state sovereignty. So it was no surprise that eight days after President George W. Bush signed the latest reauthorization into law in 2006, a challenge emerged-from Northwest Austin Municipal Utility District No. 1.
Located in the tiny community of Canyon Creek, an 80-percent white, suburban enclave along the western edge of Austin, the MUD and its five-person board are in charge of paying down debt and maintaining the community park. The MUD has no history of discrimination and did not even exist when the Voting Rights Act was reauthorized in 1982. Like all governmental units in Texas, it is subject to Section 5’s preclearance requirements.
Since it was created in 1986, the MUD has made eight submissions for preclearance under Section 5. Its last was in early 2004, when it contracted with Travis County to run its elections. The MUD’s preclearance requests were granted without objection, and the cost was a few thousand dollars. That wasn’t enough for conservative activists, who decided to challenge Section 5.
The Austin MUD, chaired by conservative activist and Ron Paul backer Don Zimmerman, teamed up with Austin lawyer Coleman to challenge the constitutionality of Section 5. Coleman previously had worked with the MUD to sue the city of Austin over utility service charges. Coleman’s challenge to the Voting Rights Act was bankrolled by conservative think tank the American Enterprise Institute and its Project on Fair Representation, run by anti-affirmative action Austinite Edward Blum.
“The ideologues who brought this lawsuit took a page from the civil rights book, which is, you take a test case, and you take it all the way,” says Nina Perales of the Mexican American Legal Defense and Education Fund. “One case can make a tremendous difference.”
At first, many Canyon Creek residents were unaware of the crusade, which was launched with little fanfare. When they found out, some were upset and attempted to get the MUD to drop the suit (someone even offered to pay the district’s Section 5 compliance costs). One opponent won election to the MUD board and, after the MUD lost its case in federal district court, proposed in a June 2008 meeting that they not appeal. The board voted 4-1 to appeal, and on Jan. 9 the Supreme Court agreed to hear the case. Conservative activists had accomplished their objective: The Voting Rights Act was once again before the high court-and this time, there might be enough votes to strike Section 5 down.
During oral arguments and in briefs filed over the preceding months, Coleman laid out the MUD’s case. Section 5 is more than 40 years old, he argued. The country has changed significantly in the intervening years, and the types of overt racism that existed in the South are a thing of the past. While racism and voting rights violations still occur, the problem is a national one that can be addressed with the nationwide solution elsewhere in the act.
“The record Congress amassed in 2006 does not demonstrate that covered jurisdictions continue to attempt to evade enforcement,” Coleman wrote in his brief. “Such voting discrimination as remains is isolated in time and place, neither confined to nor prevalent in covered jurisdictions.”
Coleman contended that a political subdivision like the Northwest Austin MUD, which has done nothing wrong and has no history of voting rights violations, shouldn’t be presumed to be less trustworthy because of the actions of others in years past. Either it should be able to invoke the bailout provision and free itself from the burdens of preclearance, or Section 5 itself should be ruled an overly broad infringement on the rights of state and local governments using an outdated formula-and struck down as unconstitutional.
Coleman argued that the MUD was a “political subdivision” qualifying for bailout and that the specific language of the law was vague. Joining the MUD with amicus briefs was the usual assortment of conservative legal centers, as well as Georgia Gov. Sonny Perdue, who cited the “dramatic progress” his state has made in voting rights and lamented that Georgia will never be allowed to “take off the Section 5 badge of racism.”
During oral arguments, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer showed little sympathy for the MUD’s case. Ginsburg asked Coleman about the language of the bailout provision, noting that in 1982 Congress considered and rejected extending the bailout option to “governmental units” like the Austin MUD. She later said that while the days of “blatant, overt racism may be over,” more subtle forms of racism still exist. Breyer displayed visible frustration as he pressed Coleman to address the evidence of discrimination Congress had compiled prior to reauthorizing the act in 2006.
Souter, in what was likely his last oral argument before retirement, succinctly summed up Texas’ voting-rights record: “We’ve got I think at the present time a 16-point registration difference on Hispanic and non-Hispanic white voters in Texas. We’ve got a record of some 600 interpositions by the Justice Department on Section 5 objections over a period of about 20 years. We got a record that about two-thirds of them were based on the Justice Department’s view that it was intentional discrimination. We’ve got something like 600 Section 2 lawsuits over the same period of time. The point that I’m getting at is I don’t understand, with a record like that, how you can maintain as a basis for this suit that things have radically changed. They may be better. But to say that they have radically changed to the point that this becomes an unconstitutional Section 5 exercise within Congress’s judgment just seems to me to deny the empirical reality.”
After the justices were done with Coleman, it was Deputy U.S. Solicitor General Neal Katyal’s and the NAACP’s Adegbile’s turn to argue that the court should defer to Congress’ determination that Section 5 is still necessary and uphold the provision for a fifth time. If Congress concluded that voting-rights discrimination was still a problem in the areas covered by Section 5-and concluded that repealing the provision would lead to a backslide in minority gains-then the court should respect that determination, Katyal and Adegbile argued. On the whole, they said, covered jurisdictions actually prefer the preclearance requirement, as it allows them to avoid costly litigation after enacting voting changes. Travis County, in which the Northwest Austin MUD is located, even filed a brief with the court supporting the government’s position and emphasizing it has no interest in removing itself from federal oversight.
Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito were quick to pose sharp questions for both lawyers. (The perpetually silent Justice Clarence Thomas can be considered a reliable vote against Section 5.) Roberts, who has previously called racial categorization a “sordid business,” wondered if Congress would ever repeal Section 5.
“Obviously no one doubts the history here and that the history was different. But at what point does that history … stop justifying action with respect to some jurisdictions but not with respect to others that show greater disparities? … I mean, at some point it begins to look like the idea is that this is going to go on forever.”
Scalia noted that only 18 political subdivisions-all in Virginia-had exercised the bailout provision to forego preclearance requirements since 1982. “It’s obviously quite impracticable for anybody to bail out,” he said. And Alito wondered why the Austin MUD shouldn’t be eligible for bailout: “If it’s the case that there is no discrimination going on, no evasion going on in this little utility district, is there any good reason why they shouldn’t be able to bail out?”
The one justice everyone was watching was Kennedy. Three years ago, he had been a surprise author of a ruling that a West Texas congressional district violated Latino voting rights. Given the current makeup of the Court, the side that gets his vote in the
UD case likely will prevail. While justices can often be circumspect during oral arguments, Kennedy displayed a nearly one-track mind in repeatedly asking whether Congress had a valid reason to apply Section 5 requirements to one set of states while ignoring others.
“No one questions the validity, the urgency, the essentiality of the Voting Rights Act,” he said. “The question is whether or not it should be continued with this differentiation between the states.”
Just a few hundred yards from where, 100 days earlier, President Barack Obama took the oath of office, MUD attorney Coleman and the NAACP’s Adegbile stood on the steps of the U.S. Supreme Court building after oral arguments, answering reporters’ questions about whether Section 5’s work is done.
“We don’t need a presumption that state and local officials in covered jurisdictions, who are trying day in and day out to act with fairness, cannot be trusted to do what’s right,” Coleman said. “The record doesn’t bear that out, and it’s improper to load them up with that scarlet letter.”
Adegbile countered: “Congress saw the evidence, saw where the problem was worst and decided to attack it there. This is a special provision for a special problem that reflects our unique history. And we cannot have a decision of this court to step away from that history.”
There is a possibility that when the Court issues its decision, expected in June, it could resolve this case by simply expanding the bailout provision, and the Northwest Austin MUD may be able to free itself from preclearance requirements, saving hundreds of dollars a year in compliance costs. Given the skepticism Justice Kennedy displayed during oral arguments, this may be the best-case scenario for supporters of the act.
The goal of the conservative groups that have bankrolled this challenge, however, is nothing short of the repeal of Section 5. If they fail to achieve success here, they’ll make another run at the law. Given the current composition of the court, the likelihood of their victory has civil rights advocates openly contemplating a world without the law’s “prophylactic” power of preclearance. All legal challenges to voting changes-and controversial measures now under consideration in Texas such as voter ID laws and proof-of-citizenship requirements-would have to be filed after the fact.
“Without Section 5, the 600-plus violations that Section 5 caught and prevented from going into effect would have gone into effect,” says NAACP Legal Defense and Education Fund President John Payton. “No Section 5, and we would have seen our democracy transformed by discriminatory changes in voting practices and procedures. It is a checkpoint, and the checkpoint caught those violations before they happened.” n
Anthony Zurcher is editor of Supreme Court Debates magazine and lives in the Washington, D.C., area.