Federal Judiciary

U.S. supports voting rights law’s extension

By Akin Gump Supreme Court Practice Group

The Justice Department on Wednesday urged the Supreme Court to uphold Congress’ 25-year extension of the key part of federal voting rights law that requires many states and local governments to get clearance in Washington before they change their election laws or methods.  That is Section 5 of the Voting Rights Act.

In a reply brief filed in Northwest Austin Municipal Utility District Number One v. Mukasey (08-322), U.S. Solicitor General Gregory G. Garre asked the Justices to rule without even ordering written briefs and argument, summarily upholding a three-judge District Court ruling in favor of the extension.  The motion to affirm is here.

The challenge to Section 5’s validity has been a major cause for some conservative activists, who argue strenuously that the law has outlived the problem it was intended to solve, and thus exceeds Congress’ power under either the Fourteenth or Fifteenth Amendments.

The Solicitor General argued on Wednesday that “the constitutionality and scope of Section 5 of the VRA is undeniably important, but the three-judge district court’s unanimous, correct and careful disposition of the questions presented does not warrant plenary review here.”

First, he said, the lower court was right in concluding that the Austin utility district was not eligible for a “bailout” that would allow it to come out from under Section 5.

And, second, on the constitutional question, Garre said that “Congress collected extensive evidence demonstrating that discrimination against minority voters continues to exist in covered jurisdictions and that Section 5 remains an effective means of preventing, deterring, and remedying that discrimination.  Congress’s factual findings are entitled to substantial deference, and the three judge district court carefully reviewed and upheld those findings.”

The fact that the utility district had filed its challenge as a “facial” one — that is, contesting the law as written, not as applied to a specific situation — increases its burden in seeking to strike down Section 5, “and reinforces the validity of the district court’s conclusion in this case,” Garre wrote.

Because the case reached the Court from a three-judge District Court, it bypassed the usual review in a Circuit Court.  In this form, the Court cannot dispose of it by simply declining review; it will take the votes of five Justices to dispose of it finally.  The Court has the option of “noting jurisdiction” and giving the case full review, or it can affirm the District Court or dismiss the appeal, without more.

Under the Court’s rules, the utility district’s appeal and the government motion to affirm will be distributed to the Justices no less than ten days from Wednesday.  The district is entitled to file a brief answering the Solicitor General, but that would not put off the distribution.

Thus, it appears that the Court could consider the case in time for a ruling during the current Court Term, even if the Justices opt for full briefing and review instead of disposing of it summarily without further briefs.  The Court has spaces left on its argument calendar for this Term.

Section 5 originally was written into law in the Voting Rights Act of 1965.  It was aimed at states and local government units that had a history of discriminating against minority voters.  If a jurisdiction covered by the law wants to change its election laws or procedures, it must get advance clearance either from the Justice Department or from a District Court in Washington.

Clearance is to be granted only if the state or local unit can show that the change will not deny or “abridge” the voting rights of minorities — defined as voters identified by race, color, of membership in a language minority group.

Congress has repeatedly extended the section, doing so most recently in 2006 — a year ahead of the scheduled expiration date.  The 25-year extension would keep the law in place until 2032.

Congress approved the extension overwhelmingly: the vote in the House was 390-33, in the Senate 98-0.  President Bush signed it into law on July 27, 2006.

Honoring noted civil rights activists, the extension is named the “Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act.”

Full post as published by SCOTUSBLOG on November 26, 2008 (boomark / email).