A case with profound historical,constitutional and voting implications, particularly for African American and communities of color whose access to, and passage of the Voting Rights Act of 1965 was a true legal achievement. Despite the fact of the Bush administrations policies on voting rights law and civil rights legislation.
In cities like Cleveland, and Cuyahoga County were the process and results for "counting one's vote" has been a constant problem, the possible result in a Roberts Court overturning the Voting Rights Act would have widespread implications for all of us who believe the right to vote is one of the most sacred and personal expressions of being a free people.
By ADAM LIPTAK
Published: January 9, 2009
WASHINGTON — The Supreme Court announced on Friday that it would decide whether Congress overstepped its constitutional authority in 2006 by extending a central provision of the Voting Rights Act of 1965.
The plaintiff in the case, a Texas municipal utility district, has argued that Congress did not take sufficient account of more than four decades of progress toward racial equality that culminated in the recent election of the nation’s first black president.
The court’s decision, expected by June, will help define the Roberts court. Chief Justice John G. Roberts Jr. opposed efforts to expand the voting rights law in 1982 as a young lawyer in the Reagan administration and has expressed skepticism on the court about racial classifications made by the government. The decision will also have significant practical consequences for elections in 16 states.
“This could be the biggest election-law case on the court’s docket since Bush v. Gore,” said Richard L. Hasen, a professor at Loyola Law School in Los Angeles.
The case concerns the requirement in Section 5 of the law that certain state and local governments, mostly in the South, must obtain permission, or “preclearance,” from the Justice Department or a federal court before making changes that affect voting.
The requirement applies to all of nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states that Congress found had a history of discrimination at the polls.
Critics of the law call the preclearance requirement a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.
The preclearance requirement, originally set to expire in five years, was upheld by the Supreme Court in 1966 as a rational response to the often flagrantly lawless conduct of Southern officials intent on “perpetuating voting discrimination in the face of adverse federal court decrees.”
Congress has repeatedly extended the requirement: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years.
The lawsuit challenging the requirement was brought by a municipal utility district in Austin, Tex., established on undeveloped land there in the late 1980s. The district said it had never been accused of voting discrimination and should not be made to seek federal permission to, say, move the location of polling places or consolidate voting for its five-member board with the larger county ballot.
A special three-judge court here upheld the constitutionality of the preclearance requirement in May, saying Congress had acted reasonably in making the judgment that voting discrimination persisted.
The utility district argued to the Supreme Court that Congress had given insufficient weight to social and political changes since the civil rights era. It added that the applicable legal standards had changed since 1966.
There is no reason, the district’s lawyers told the justices, to presume “that jurisdictions first identified four decades ago as needing extraordinary federal oversight” today remain “uniformly incapable or unwilling to fulfill their obligations to faithfully protect the voting rights of all citizens in those parts of the country.”
In addition, the district argued, a 1997 Supreme Court decision, City of Boerne v. Flores, imposed a more demanding standard for deciding whether Congress exceeded its authority than mere rationality by requiring “congruence and proportionality” between the harm in question and the means used to prevent it.
The special court had ruled that the more relaxed level of scrutiny used by the Supreme Court to uphold the law in the 1966 case, South Carolina v. Katzenbach, should apply. But it added that the recent extension of the preclearance requirement passed the more demanding “congruence and proportionality” test, too.
The Supreme Court can avoid the larger issue in the new case, Northwest Austin Municipal Utility District Number One v. Mukasey, No. 08-322, if it chooses to accept the utility district’s argument on a subsidiary point. The district says it should be entitled to relief under a provision in the voting rights law that allows political subdivisions with clean discrimination records for 10 years to “bail out” from the preclearance requirement with court approval.
The special court said the provision was available only to government units that register voters, and the utility district does not.
In November the Bush administration filed a brief defending the law that urged the Supreme Court to affirm the lower court’s decision without further briefing and argument. (The Voting Rights Act contains unusual jurisdictional provisions, which account for the special lower court and which allow a direct appeal to the Supreme Court.)
The Supreme Court also agreed on Friday to hear three other cases, two of them involving the combustible issue of how the government treats racial and other minorities.
One of them, Ricci v. DeStefano, No. 07-1428, arose from a test given to firefighters who sought promotions in New Haven. White candidates passed the test at a much higher rate than minority candidates, and very few Hispanics and no blacks qualified for the available positions. A civil service board threw out the test, and no one was promoted.
A three-judge panel of the federal appeals court in New York rejected a lawsuit brought by white and Hispanic firefighters claiming race discrimination. The full appeals court, by a vote of 7 to 6, declined to hear the case.
Dissenting from that decision, Judge Jose A. Cabranes wrote that the case “presented a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”
The court will also hear Horne v. Flores, No. 08-289, concerning whether lower courts were correct in ruling that Arizona is not spending enough money to help students there overcome language barriers.
Finally, the court agreed to hear Iraq v. Beaty, No. 07-1090, concerning whether people who were mistreated in Iraq under the government of Saddam Hussein may recover damages from the nation’s current government. The Justice Department had urged the court to hear the case and rule that the current government of Iraq enjoyed sovereign immunity from such claims.