April 29: Challenging the Voting Rights Act

Case: NAMUDNO v. Holder

Date: Wednesday, April 29, 2009

Issue: Did Congress improperly extend for 25 years a significant section of the historic 1965 Voting Rights Act?

Background: Justice David Souter recently reflected on the Supreme Court justices who in 1896 ruled that segregation was constitutional and of a different collection of justices who in 1954 ruled unanimously that separate was not equal. Souter's speech explained how the collective life experiences of those two different sets of justices could allow them to reach opposite answers on a fundamental question of American law. Souter explained that in the context of their lives the justice's racial experiences in large part explained their jurisprudence.

Wednesday's case in front the Supreme Court may be another example of this phenomenon. On four occasions, a different make-up of justices signed off on the "preclearance" section of the historic 1965 Voting Rights Act. Those justices of the past were ruling in favor of a law designed to fight Jim Crow. The question before today's court is if that law is still applicable with Barack Obama as president of the United States.

But as a matter of law, Obama's election should not factor into the analysis of this case which rests on what Congress did in 2006. In that sense, as far as the record is concerned, President Obama doesn't exist. Of course, such a vacuum can't really envelop the courtroom; so it’s unclear how much of an impact the election of the nation's first African American president will have on the ultimate decision reached by the Court.

The "preclearance" provision forces a number of mostly southern states to obtain Justice Department approval before they can change any election procedures. The rule was instituted to combat attempts by local voting officials to suppress minority turnout. Congress has extended the law four times and four times the Supreme Court has upheld the law.

In 2006, the Senate unanimously passed a bill extending the provision for 25 years. Only 33 members of the House of Representatives voted against the measure. President Bush even held a ceremony to sign the bill into law. A week later the Northwest Austin Municipal Utility District Number One (NAMUDNO) filed a lawsuit challenging the extension.

NAMUDNO is in a suburban community of Austin, Texas and was created in 1987 for the purpose of authorizing the financing of sewer construction and other infrastructure projects. After holding elections in the garage attached to Jack Steuber's house for a number of years it was decided the local elementary school would a more appropriate venue. But because NAMUDNO is in Texas, a state covered by the 1965 law, that change required DOJ approval.

The district sued the federal government on the belief that as an entity created after the Voting Rights Act took effect and with no history of race related election problems it should be able "bail out" of federal oversight. If further argues Congress gave cursory review of the actual need for a 25 year extension of the "preclearance" provision.

NAMUDNO contends the American landscape has changed so much in the 44 years since the VRA was passed that its "preclearance" measure is no longer necessary. It also points to the election of President Obama as another measure of how much has changed since 1965. It reasons that "Congress cannot continue to impose the most intrusive inversion of our federalist structure on jurisdictions identified based solely on decades-old data when every indication demonstrates that the original emergency has now passed."

The Obama Administration defends the "preclearance" requirement. It says NAMUDNO is not eligible for "bail out" relief but more fundamentally disagrees with the idea the protections of the VRA are no longer needed. "The immense record amassed by Congress [in 2006] provides ample evidence that ["preclearance"] has played, and continues to play, a critical role in preventing and deterring discriminatory electoral changes. It has, moreover, helped to preserve the hard won progress minority voters have achieved over recent decades in having their electoral voices heard."

The NAACP has joined the case and agrees with the Obama Administration. It concedes that Obama's election is an undeniable sign of racial progress but that it "in no way undermines the record of official race based discrimination in voting before Congress in 2006." The organization’s brief to the Court goes on to use the words of Justice Anthony Kennedy from his opinion earlier this year about another racially-charged voting rights case. It argues Obama's election has not changed the fact that “much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions.”

One sign that this case is viewed as particularly significant is that 26 friend of the court briefs were submitted outlining various arguments to the justices. Those briefs have come from people like Georgia Governor Sonny Perdue (R) who is supporting the utility district—and from the Congressional Black Caucus in favor of keeping the "preclearance" protection.

The justices themselves also think this is an important case having agreed to a media request for the same-day release of an audio recording of the oral arguments. This is something the justices only do in high-profile cases. It is the only time they have done this in their 2008-2009 term. NAMUDNO v. Holder is the last case the justices will hear this term. A decision is expected by late June.