Tuesday, June 23, 2009

Statement Regarding Northwest Austin Utility District v. Holder

Immediate Release: June 23, 2009
Leland Ware at 302-831-3930

Statement Regarding Northwest Austin Utility District v. Holder

In Northwest Austin Municipal Utility District Number One v. Holder, the Supreme Court yesterday ruled 8-1 to affirm the validity of Section 5 of the Voting Rights Act. The case involved a Constitutional and statutory challenge to Section 5, which requires “covered jurisdictions,” state and local governments, mostly in the South, to seek federal permission before making any changes to voting procedures.

Legislative hearings leading to the enactment of the Voting Rights Act showed that the federal government’s use of court cases to eliminate discriminatory election practices was ineffective; as soon as one discriminatory practice was proven to be unconstitutional, a new one would be substituted requiring another round of lengthy and time consuming litigation.

The law was enacted in 1965 after Congress found that case-by-case litigation was inadequate to combat wide-spread discrimination in voting in the South. After nearly a century of systematic resistance to the Fifteenth Amendment, Congress decided to shift the burden of proof from the victims the evil to the perpetrators, who are obligated to demonstrate their compliance with the law. Six southern states are covered, as are a number of counties in several other states. Congress reauthorized the law in 2006.

Invoking the doctrine of “constitutional avoidance,” which states that cases should be resolved on non-constitutional grounds, if possible, the Court's majority ruled against the Utility District on narrow, statutory grounds.

The Court held that the Texas Utility District was eligible to take advantage of the “bailout” provisions of Section 5 by showing that it has not violated voting rights for the past 10 years. The lower court had ruled that the some political subdivisions such as the Utility District were not eligible to take advantage of the bailout provisions. The Supreme Court held that all political subdivisions are eligible.

Chief Justice Roberts’s skeptical questioning during the argument, and other indications suggested to many observers that the Court might strike down Section 5. That turned out not to be the case, but Roberts’ majority opinion expressed reservations, stating that America is a “very different nation” than it was in 1965.

Justice Clarence Thomas, the Court’s only African-American member, dissented from the ruling, stating that he would have taken on the constitutional issue and struck down Section 5. He believes that extensive pattern of discrimination that justified the original law no longer exists.

The actual evidence does not support Justice Thomas' assertion. Congressional hearings held during the 2006 reauthorization showed that wide spread abuses persist. The voter protections accorded under Section 5 are still needed.

About the Author: Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware. He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.

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