Federal Judiciary

Federal court upholds voting rights extension

By Akin Gump Supreme Court Practice Group

In a case almost certainly headed to the Supreme Court this summer or fall, a three-judge federal court in Washington, D.C., on Friday upheld Congress’ 25-year extension of a key provision of the Voting Rights Act originally passed in 1965 and repeatedly extended since then.

The specific law at issue applies to states and local government entities with a past history of racial discrimination in voting, and bars them from making any current changes in election laws without first getting approval by the Justice Department or a three-judge federal court in Washington.  The current extension, adopted in 2006, extends those requirements until 2031.  The law is Section 5 of the 1965 Voting Rights Law.

One of the most eagerly awaited voting rights rulngs in years, the decision came in the case of Northwest Austin Municipal Utility District No. One v. Mukasey (District Court docket 06-1384) — a case that produced a huge paper record.  The ruling can be downloaded here. The 121-page opinion was written by Circuit Judge David S. Tatel. Added to it is a 15-page appendix providing examples of resistance to racial equality in voting in nine states during the period 1982-2005.

Under the law, any challenges to the law must be heard by a three-judge District Court, with any appeals directly to the Supreme Court, bypassing a Circuit Court.  Joining Judge Tatel in Friday’s ruling were District Judges Paul L. Friedman and Emmet G. Sullivan.  Because the controversy over the 2006 extension has been so intense, and has drawn such wide interest, it is most likely that the Texas utility district that filed the challenge will appeal it to the Supreme Court. 

Once a formal notice of appeal is filed, the district would have 60 days to file an appeal in the Supreme Court — although that time limit can be extended.  Because the case involves a direct appeal to the Supreme Court, it will take five votes to decide it; this is not the kind of case that can be denied review simply because it lacks four Justices’ votes to hear it, as with a certiorari petition.

The constitutional conclusions the Court drew were two — one based on the Fifteenth Amendment, the other on the Fourteenth.

First, it upheld the law by applying the standard laid down by the Supreme Court in South Carolinz v. Katzenbach in 1966, upholding the original version of the law — that is, did Congress have a rational basis for passing the extension to enforce the Fifteenth Amendment ban on racial discrimination in voting.  Second, it upheld the law by applying the stricter standard articulated by the Supreme Court in the 1997 decision in City of Boerne v. Flores, requiring Congress, when exercising its power to enforce the Fourteenth Amendment guarantee of legal equality, to provide a remedy that is “congruent and proportional” to the problem being confronted — here, continuing race bias in voting. The Court found the provisions were sufficiently closely tailored to that problem.

The extension law is formally named the ”Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voing Rights Act Reauthorization and Amendments Act of 2006.”  The names are those of three prominent figures in civil rights history. 

Just days after the extension became law, following a unanimous Senate vote and a 390-33 vote in the House, the law was challenged by the utility district.

Northwest Austin Municipal Utility District Number One was created in the late 190s, the Court noted, “to facilitate the development of a residential subdivision” by providing local services to some 3,500 residents.  It is within the city of Austin and Travis County but is independent of those two.   Because the entire state of Texas is covered by the Voting Rights Act of 1965, the utility district is also covered for its elections every two years of members of its board of directors.  Since 2002, its elections have been conducted for it by Travis County.

The district’s first claim in the lawsuit was that it was entitled to be exempted from the law.  While a covered government must get federal clearance for any change in voting procedures, the law provides for a possible “bailout” from preclearance, if a three-judge federal court agrees.

In Friday’s ruling, however, the Court ruled that the district was not eligible for a bailout, because that opportunity is limited to jurisdictions that conduct voter registration.  Only those local political subdivisions of a state that do voter registration, the Court found, can qualify for bailout.  If the district believes Congress’s expansion of the bailout provision in 1982 “was too modest,” the Court said, the district can ask Congress to go further.

Because the Court ruled as it did against bailout, it then turned to the district’s claims that Congress did not have the power to enact the extension in 2006.   The district contended that the situation in voting rights in 2006 was nowhere near the same as in 1965, that Congress used an “ancient formula” to maintain the law, and that the extension imposed an unequal burden and a “badge of shame” on those governments covered.

The Court treated the case as primarily one under the Fifteenth Amendment.  While Congress has passed extensions of the law, including the one in 2006, by relying also on the Fourteenth Amendment, the Court said it need not have done so; the Fifteenth Amendment provided all the power that Congress needed.

“Put simply, this case implicates Congress’s express constitutional authority to remedy racial discrimination in voting” under the Fifteenth Amendment, the Court commented. It added that none of the Supreme Court’s rulings narrowing Congress’ authority to enforce the Fourteenth Amendment involved “two such essential rights” — the right to racial equality and the right to vote.  The Fourteenth Amendment decisions it said, did not involve “any rights so close to the core objectives of the Civil War Amendments.”

Full post as published by SCOTUSBLOG on May 30, 2008 (boomark / email).