Wednesday, February 25, 2009
Jeffrey Toobin writes in The New Yorker that "the current conservative majority has a chance to undo this signal achievement of American democracy," Section 5 of the Voting Rights Act, when the Court considers Northwest Austin Municipal Utility District No. 1 v. Holder later this term. (The case is set for oral argument on April 29.)
Section 5 is the "preclearance" provision of the VRA, requiring certain jurisdictions with a history of discrimination at the polls to obtain permission from the Justice Department prior to changing their voting procedures. Northwest Austin MUD argues that it should be able to bail out of the preclearance requirement under the Act and that Congress lacked authority under the Reconstruction Amendments to reauthorize and extend Section 5 in 2006. Toobin focuses on this second argument. Toobin:
Some of the jurisdictions covered by Section 5 now want to be released from this form of federal receivership. As the lower court in the case put it, the plaintiffs argue that the preclearance provision should be found unconstitutional "because Congress 'irrationally and incongruously' chose to continue imposing 'disproportionate' burdens and a 'badge of sham' on covered jurisdictions on the basis of an 'ancient formula' and 'conditions that existed thirty or more years ago but have long since been remedied.'" What is the proof? The plaintiffs stated it in the first line of their brief: "The American that has elected Barack Obama as its first African-American president is far different than when Section Five was enacted in 1965."
Toobin responds by exploring racialized voting patterns among whites in Section 5 jurisdictions in the 2008 election and the variety of hassles that blacks have disproportionately endured in every recent national election.
But two important components of the case are missing from this back-and-forth. First, Northwest Austin MUD faces an significant uphill battle in its facial challenge of the VRA at the Roberts Court. The Court has raised the bar for facial challenges in other election law contexts, and there's no reason to think that its high hurdle won't apply here.
Second, MUDs in general are hardly models of democracy. In fact, they often operate in ways that ought to make us grateful for federal oversight via Section 5 of the VRA. Professor Sara Bronin (U. Conn.) wrote about the problems with MUDs; I posted on her article here.
If the Court is true to its trend on facial challenges, it will look to the evidence before Congress in its reauthorization hearings and ask whether Northwest Austin MUD has shown that reauthorization is not proportional and congruent to the evils of voting discrimination in every conceivable case where Section 5 applies. This italicized language is the high bar--or the thumb on the government's side of the scale--that the Court set in its recent jurisprudence on facial challenges.
But even if the Court backs off this standard and treats the case more like an as-applied challenge, a Texas MUD may not be the ideal political subdivision to take on Congressional authority to reauthorize Section 5. Election practices in both Texas and the Northwest Austin MUD could go under the microscope, and the results may not be pretty.
I previously posted on the case here.