Statement of Laughlin McDonald on Northwest Austin Municipal Utility District Number One v. Mukasey

Document Date: September 30, 2008

> Steven R. Shapiro, ACLU Legal Director – Overview of the Term
> Jonathan Hafetz, ACLU National Security Project – Al-Marri v. Puccuiarelli
> Chris Hansen, ACLU First Amendment Working Group – ACLU v. Mukasey
> Laughlin McDonald, ACLU Voting Rights Project – Northwest Austin Municipal Utilities District v. Mukasey

> The ACLU in the Supreme Court

Northwest Austin Municipal Utility District Number One v. Mukasey, 557 F.Supp.2d 9 (D. D.C. 2008).

On July 27, 2006, Congress amended and extended the historic Voting Rights Act of 1965 by a vote of 390 to 33 in the House and a unanimous vote in the Senate. (The Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006). A week later, Northwest Austin Municipal Utility District Number One (“MUD”) filed suit in federal court in the District of Columbia arguing that it was entitled to bail out from coverage under Section 5 of the Act, 42 U.S.C. § 1973c, or in the alternative that Section 5, which had been extended for an additional twenty-five years, was now unconstitutional.

Because of the importance of Section 5 in protecting minority voting rights, the case drew a strong and concerted response from the civil rights community. Minority voters represented by the ACLU, NAACP, Legal Defense Fund, Lawyers’ Committee, MALDEF, People for the American Way, Texas Legal Aid, and Public Citizens Litigation Group moved to intervene to defend the constitutionality of Section 5 and argued that the MUD was not entitled to bail out. The interventions were granted.

Section 5, which was originally enacted for five years, requires jurisdictions with egregious histories of discrimination in voting to get federal approval, or preclearance, of their new voting practices or procedures before they can be implemented. Sixteen states, or parts of states, are covered by Section 5. Preclearance may be obtained by making an administrative submission to the Department of Justice or by filing a suit for declaratory judgment in the District of Columbia . In either instance, the submitting jurisdiction has the burden of showing that the proposed change will not have a discriminatory purpose or effect.

Section 5 was by far the most controversial provision of the Voting Rights Act, and was immediately challenged by South Carolina and five other southern states as unconstitutional and an unwarranted intrusion upon states’ rights. The Supreme Court disagreed, concluding the Act and Section 5 were justified by the “insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966).

Congress subsequently extended Section 5 in 1970, 1975, 1982, and 2006. Texas and its political subdivisions were covered by Section 5 as a result of the 1975 amendments, which extended the protection of the Act to language minorities. Language minorities are defined as American Indians, Alaskan Natives, Asian-Americans, and persons of Spanish Heritage.

The three-judge court issued its opinion on May 30, 2008, and held that the MUD was not entitled to bail out from Section 5 coverage. It rejected the MUD’s constitutional challenge on the grounds “that given the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions, Congress’s decision to extend section 5 for another twenty-five years was rational and therefore constitutional.” Section 5 was also found to be a “tailored remedial scheme . . . [that] qualifies as a congruent and proportional response to the continuing problem of racial discrimination in voting.” The MUD filed a notice of appeal to the Supreme Court on July 7, 2008, followed by a jurisdictional statement filed in September 2008. The appellees have 30 days after the case is placed on the Supreme Court’s docket to file a response.

In extending Section 5 in 2006, Congress held a total of 21 hearings, heard from more than 80 witnesses, and compiled a massive record of more than 16,000 pages of evidence. It concluded that “vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process.” Congress also concluded that “[t]he continued evidence of racially polarized voting in each of the jurisdictions covered by the expiring provisions of the Voting Rights Act of 1965 demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection of the Voting Rights Act.” Congress further relied on “the hundreds of objections” interposed to voting changes submitted by covered jurisdictions since the last extension of the statute in 1982. 120 Stat. 577, sec. 2(b)(2), (3), and (4)(A).

The constitutionality of Section 5 has been challenged numerous times in the past, but the challenges have all been rejected. Given the historic and continuing role Section 5 has played in the protection of minority voting rights, a ruling by the Supreme Court in the MUD case, should it agree to hear it, would be extremely significant.

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