In late April the U. S. Supreme Court heard arguments in a case out of Texas which could spell some relief for nine southern states and parts of seven other jurisdictions which are required to submit proposed redistricting plans or changes in voting laws to the Justice Department’s Civil Rights Division for an approval process called “preclearance” under Section 5 of the Voting Rights Act.
These matters can include changes from the location of polling places to the makeup of districts in state legislatures to the elections for all public offices. Because Section 5 was the most significant intrusion into state and local government power since the post Civil War era, it has been considered temporary. However, it has been continually extended and even broadened, as late as 2006, to protect Hispanics and others.
As an administrator in the State Court System, I was involved with a team of judicial officials who had to deal with the issue from the mid-1980s into the early 1990s; attempting to obtain post-preclearance for a significant number of legislative acts which had created judicial positions but had not been sent, by more than one attorney general, to the U. S. Department of Justice to undergo the preclearance procedure. Some dated back to the 1970s and included positions in the trial courts and on the appellate courts, including the State Supreme Court.
We were finally successful but it was a tedious process, and totally unnecessary I believe, since none of the new judgeships created any change in voting jurisdictions.
The nation’s highest court will have the opportunity to correct some of this nonsense in the case of Northwest Austin
Municipal Utility District vs. the
U. S. Attorney General
which was argued orally on April 29 and is expected to be released by the end of the current court term. The questions presented to the court are these:
1. Whether the Voting Rights Act (VRA), which permits “political subdivisions” of a State covered by Section 5’s requirement that they preclear changes in voting may bail out of Section 5 coverage if they can establish a 10-year history of compliance with the VRA?
2. Whether the 2006 enactment of the Section 5 preclearance requirement can be applied as a valid exercise of Congress’s remedial powers under the Reconstruction Amendments when that enactment was founded on a congressional record demonstrating no evidence of a persisting pattern of attempts to evade court enforcement of voting rights guarantees for the past 35 years?
It appears the court has these options: reject the entire argument of the Texas district or grant the Texas political subdivision narrow relief (bailout under 1 above) or provide broader relief (under 2 above), perhaps striking down all or parts of Section 5.
The simplified question before the Supreme Court is whether this primarily Confederate state provision is still needed and should it be modified to allow broader opt-out provisions. The Texas district argument is that this is not the same America that existed when Section 5 was put into place in 1965. Gregory S. Coleman, a former Texas solicitor general, made the following argument: “At some point you have to say we’ve come far enough. Why do we and the other affected jurisdictions have to have the federal government looking over our shoulder forever?”
Oral argument questioning from the conservative-leaning justices seemed to be favorable to Coleman. Said Chief Justice Roberts: “Here, as I understand it, only one-twentieth of one percent of the submissions is not precleared. That, to me, suggests that they are seeing far more broadly than they need to, to address intentional discrimination. It’s like the elephant whistle. I have this whistle to keep away the elephants. Well, there are no elephants, so it must work. That’s silly. I mean, if you have 99.98 percent of these being precleared, why isn’t that reaching far too broadly?”
A note of caution: Quite frequently the comments of justices do not point directly to how they will vote.
NOTE: Of the many briefs filed in the matter was one from Gov. Bob Riley, who took no position on the legal issues of the case. However, Riley’s brief did state that by renewing Alabama’s coverage under the act in 2006 Congress “wrongly equated Alabama’s modern government and its people with their Jim Crow ancestors” and to “rectify this error” he chronicled the state’s progress in minority voting rights from 1965 to present.