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Big Enough to Cover, Too Small to Let Out

By Eric L. Lipman

In an interesting opinion issued on Friday, a special three-judge panel turned aside the challenges of the Northwest Austin Municipal Utility District to the ?preclearance? requirements of Section 5 of the Voting Rights Act. The Utility District sought a declaratory judgment exempting it from the requirement to submit changes in voting procedures for review. Alternatively, the Utility District challenged the constitutionality of Congress? recent 25-year extension of section 5 of the Act as lacking a sufficient record of present-day racial discrimination in voting. Argued the Utility District, the rate of voting procedures as to which the Attorney General objects to each year has become ?so vanishingly small? as to refute all claims that section 5 ?acts as anything other than a symbolic assertion of federal supremacy intended to perpetuate the fiction that states and localities cannot be trusted to enact fair and nondiscriminatory voting practices and procedures.?

Rejecting both claims, the panel held that the Utility District was not the type of jurisdiction that Congress permitted to seek an exemption from the Act and that ?the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions,? justified Congress?s decision to extend the preclearance procedures of section 5.

For me, the most interesting part of the opinion is the panel?s conclusion that the Utility District was large enough to be bound by the preclearance procedures, but too small a jurisdiction to be permitted to demonstrate that its own history of voting practices did not justify federal oversight. Quoting a 1982 Report of the U.S. Senate, the panel notes that Congress considered and rejected the claim now made by smaller jurisdictions like the Utility District:

As a practical matter, if every political subdivision were eligible to seek separate bailout, we could not expect that the Justice Department or private groups could remotely hope to monitor and to defend the bailout suits. It would be one thing for the Department and outside civil rights litigators to appear in hundreds of bailout suits. It would be quite another for them to have to face many thousands of such actions because each of the smallest political subunits could separately bail out.

Further, citing with approval the brief of the NAACP, the panel continued ?[i]f the District?s claim were accepted ? it would require Congress to determine the appropriateness of Section 5?s coverage of every single state, county, city, village, utility district, special purpose district, or any other entity that holds elections?. The District?s position would also open the door to as-applied challenges by thousands of entities that conduct elections within covered jurisdictions, upsetting the balance Congress struck when it expanded bailout eligibility in 1982.?

Likewise interesting, the panel includes as an Appendix to its opinion excerpts from recent objection letters from the U.S. Attorney General; excerpts that the panel concludes demonstrate both contemporary practices of discrimination and the continuing need for remediation.

The panel?s complete analysis and appendix is accessible here.

Full post as published by Within the Scope on June 02, 2008 (boomark / email).