Guilty until proven innocent.
Concerning the sin of racial discrimination, that’s how Congress continues to treat Southern states and localities — but a small Texas utility district has filed the first of what may be many similar lawsuits that challenge Congress’ power to do just that.
By all reasonable standards of both law and justice, the Texas plaintiffs ought to win their suit. But this suit, perhaps combined with others along the same lines, is unlikely to succeed (or fail) without first becoming one of those landmark cases that sends the political punditocracy into a tizzy.
The suit (Northwest Austin Municipal Utility District Number One v. Gonzales) seeks to overturn the federal Voting Rights Act’s Section 5, which Congress just renewed in July. While most of the VRA is morally and constitutionally unassailable, Section 5 has long been subject, justifiably so, to controversy.
The provisions at issue require certain states and jurisdictions — and only those particular states and jurisdictions, most of them Southern — to secure what is known as “pre-clearance” from the U.S. Department of Justice before making any changes, no matter how minor, in “practices or procedures affecting voting.”
The laudable goal, of course, is to prevent racist officials from making it difficult for black or other minority citizens to vote. When the VRA originally was passed in 1965, the jurisdictions covered by the requirement were chosen based on an abundance of specific evidence of discrimination against minority voting rights.
But as Loyola Law School, Los Angeles, Professor Richard Hasen noted in an essay published shortly before Congress renewed the law, “there is not much of a record of recent state-driven discrimination that Congress could point to [to] support renewal.”
In practical terms, the preclearance requirement can be burdensome and even counterproductive. Hasen, who supported renewal of Section 5, reports that less than half of one percent of all proposed changes are found wanting in any way. But, as the plaintiffs note, “every [covered] local political subdivision must ask the attorney general of the United States to approve a plan to move a polling place across the street from a church to a school.
In addition to the cost of the submission itself, most proposed changes are presumptively delayed by at least 60 days awaiting the attorney general’s approval. … And because of the cost and delay involved in submitting a request for preclearance, local governmental units must weigh [the costs and benefits], meaning that many routine and beneficial changes are not made because of the bureaucratic cost. …
“For example, the district had to seek preclearance just to move the voting location for its directors out of a residential garage and into a public school, a move that was calculated to increase public access to the ballot box.”
Yet while jurisdictions such as this Texas utility district, which didn’t even exist at the time of the alleged civil rights violations and which has no record of discrimination, must undergo this expense, some Northern and Midwestern localities guilty of far more recent discriminatory practices remain unburdened by Section 5.
This disparate treatment of different states, especially unrelated to their recent records concerning voting rights, may make Section 5’s renewal vulnerable to constitutional challenge. While, as Hasen described it, “the [Supreme] Court’s majorities in these cases are shifting and uncertain,” the 2001 case of Board of Trustees v. Garrett showed that the Court will require “an adequate evidentiary record to support” continued congressional interference on traditionally state prerogatives such as running elections
The Texas plaintiffs note, almost incontrovertibly, that “the conditions that caused Texas to be covered by Section 5 have … been remedied for over 30 years.” They can find further hope in the fact that in a key post-Garrett case that seemed to give Congress a bit more authority on such matters, Tennessee v. Lane, the fifthjustice willing to favor Congress over the states was the now-retired Sandra Day O’Connor. Her replacement, the conservative Samuel Alito, may be more willing to re-establish the traditional powers of state and local governments against congressional usurpations.
As Hasen noted in his essay, Section 5 was unique from the very start: “Never before (or since) has a state or local jurisdiction needed permission from the federal government [in advance] to put its own laws into effect.”
By the court’s own prior reasoning, such heavy-handed federal intervention is allowable only to remedy specific and serious transgressions. But as the Texas plaintiffs insist in their lawsuit, quite reasonably, “it is both arbitrary and irrational for Congress to continue preclearance and, worse, under the same coverage formula established in a bygone era. Times have changed, and Section 5 should now be struck down as unconstitutional.”
Examiner columnist Quin Hillyer is a senior editor of The American Spectator. He can be reached at [email protected]
