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AUSTIN MUD v. VOTING RIGHTS ACT b y ANTHONY ZURCHER NO CHANGE TO SE NO CHANGE TO SECTION 5 REPEAL SECTION 5 BROADEN BAILOUT PROVISION v. ANTHONY KENNEDY REPEAL SECTION 5 BROADEN BAILOUT PROVISION illustration by Daniel Lievens 8 THE TEXAS OBSERVER MAY 15, 2009 Will conservative activists in a small Texas utility district take down a key piece of American civil rights law? IIn 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 5or, 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.