Posted April 28, 2009 by J. Gerald Hebert

All Voters Welcome: The Voting Rights Act must still hold open the doors to the polling place

The follwing opinion piece was published in Legal Times on April 27, 2009

As soon as Barack Obama secured the Democratic Party’s presidential nomination, opponents of the Voting Rights Act started to argue the landmark civil rights legislation was obsolete. Obama’s victory in the general election was declared proof-positive that the act is archaic and completely unnecessary. If an African-American can become president, the critics said, then no minority group needs protection of their voting rights.

This week the U.S. Supreme Court will hear a challenge to the constitutionality of certain provisions of the Voting Rights Act. Section 5 of the act requires designated jurisdictions to “preclear” any voting-related changes with federal officials. Those who point to Obama’s election as evidence that the act is no longer needed are also lining up to hail Northwest Austin Municipal Utility District Number One v. Holder as the perfect opportunity for the high court to declare Section 5 unconstitutional.

They’re wrong. This case is the perfect opportunity for the justices to affirm the viability of preclearance, which has proved its value, time and again, in preventing discriminatory efforts before they get started. The Court may want to add that the Voting Rights Act is the single most effective piece of civil rights legislation ever passed by Congress.

Critics of the act dismiss it as some sort of blue law, still on the books simply because no one has bothered to repeal it. If only that were true. I spent 15 years litigating cases in the Voting Section of the Justice Department’s Civil Rights Division, and I can say from firsthand experience that efforts to suppress minority voting rights did not end even after the Jim Crow laws were removed from the books. Sadly, minority vote suppression and other discriminatory practices continue to this day.

Just last year, in Waller County, Texas, students from Prairie View A&M, a historically black university, faced repeated hurdles erected by local officials when they attempted to register and to vote. The practices only stopped after my organization, the Campaign Legal Center, met with Justice Department officials, provided them with details of what our investigation had uncovered, and urged them to file suit. The department had been investigating the county for two years and yet, inexplicably, had taken no action. But after we turned over updated information about the ongoing racial discrimination, the department secured a federal court order under the Voting Rights Act that provided far-ranging relief.

THE WRONG PARTY

In the case before the Supreme Court, a Texas municipal utility district had petitioned a special trial court in Washington, D.C., seeking exemption, known as a “bailout,” from Section 5. The Northwest Austin Municipal Utility District Number One was ruled ineligible for the bailout (more about that in a moment).

So now the district is challenging the constitutionality of the preclearance procedure. The provisions require state and local governments in all or part of 16 states with documented histories of voter discrimination and depressed political participation (mostly in the deep South) to obtain federal approval of any change in a voting standard, practice, or procedure, usually from the Justice Department. The state or local government must demonstrate that the new practice or procedure has no discriminatory purpose and will have no discriminatory effect.

The special trial court ruled that the Northwest Austin utility district is not statutorily eligible to seek a bailout because it is not a political subdivision that registers voters. Travis County, which encompasses the utility district and does register voters, did not seek a bailout and does not support the district in its Supreme Court case. (Note: I represented Travis County in an earlier stage of this litigation.) The county, as it made clear in its amicus brief to the high court, does not believe the time has come to bail out and sees continuing usefulness in the process created by the preclearance requirements.

The statute could not be clearer: Only jurisdictions that actually register voters—and that meet the criteria for bailing out—are eligible to bail out.

CONGRESS HAS THE POWER

But let’s set aside the eligibility issue and focus on the utility district’s arguments for killing off preclearance. This is where the states’ rights banner gets unfurled. Critics of the act have argued from Day One that in passing the Voting Rights Act, Congress exceeded its powers and invaded the rights reserved to the states. Once again, those claims are at the heart of the Supreme Court case. They should be rejected again, just as they were by the Court in 1966 and in 1980.

When Congress enacted and later extended the Voting Rights Act, it unmistakably invoked its power under the 15th Amendment to the Constitution to guarantee that no citizen’s right “to vote shall be denied or abridged on account of race, color, or previous condition of servitude.” The second article of the amendment states that “Congress shall have power to enforce this article by appropriate legislation.” The 15th Amendment thus constitutes an express delegation of power by the people and the states to the national legislature.

And the Voting Rights Act is founded on that power—to end racial discrimination in voting. As then-Solicitor General Thurgood Marshall and others at the Justice Department told the Court in 1965 when constitutionality was first at issue: “It is the national legislature—rather than the Executive or the Judiciary—that has principal responsibility for fashioning the means of protecting the right [to vote] created by the Fifteenth Amendment.”

NO HEAVY BURDEN

Another misguided argument being made by the Voting Rights Act critics is that the process of seeking exemption from preclearance is onerous and cost-prohibitive. To bail out, a jurisdiction must show that its voting processes have been nondiscriminatory for at least a decade.

As a lawyer who has represented every jurisdiction that has bailed out, I beg to differ. Since the act was amended in 1982 to permit bailouts, not a single local government that has asked the Justice Department for this exemption has been turned down.

While only 17 jurisdictions (mainly county governments) have actually bailed out, that figure is attributable more to the lack of awareness of the bailout option among local officials than to a burdensome process or a heavy financial cost. Much of the data required to establish bailout eligibility is already being produced to meet preclearance requirements and run elections. And jurisdictions that have bailed out estimate the average cost at about $5,000.

Moreover, many local governments are just not interested in seeking a bailout. They have incorporated the preclearance process into their ordinary business routine. Indeed, a number of these jurisdictions see a benefit to the process, for it assures local citizens that the voting changes being proposed have been reviewed by federal authorities and approved as nondiscriminatory.

POLITICAL TRUTHS

No one can deny that the election of President Obama was good news on the racial front. But it does not prove that bias in voting procedures has ended. It is worth noting, if only because the critics assiduously avoid mention of the fact, that Obama carried only one state, Virginia, of the nine covered in their entirety by Section 5.

Probably no group of people monitor election trends more closely than the members of Congress. On five different occasions they have carefully considered, and later reconsidered and reauthorized, the preclearance requirements of the Voting Rights Act. In 2006, they assembled an extensive legislative record: The House Judiciary Committee alone gathered more than 12,000 pages of testimony. Then Congress voted overwhelmingly to reauthorize the act by counts of 98-0 in the Senate and 390-33 in the House. That such a sharply divided legislature could reach such an overwhelming consensus speaks volumes about the importance of this act.

These days many in Congress and in the federal judiciary, including some justices, disparage “judicial activism.” Overturning key provisions of the Voting Rights Act after the Supreme Court has upheld the act twice in the last 40 years, and doing so even though our Constitution expressly gives the legislative branch the greatest authority to protect voting rights, could hardly be defined as anything short of judicial activism. Let us hope that the high court will recognize that voting rights are, as President Ronald Reagan once called them, the crown jewel of American liberties.

J. Gerald Hebert is executive director of the Campaign Legal Center and former acting chief of the Voting Section of the Justice Department’s Civil Rights Division. He filed an amicus brief in the Supreme Court in support of the Voting Rights Act for several Virginia jurisdictions that have bailed out. The Campaign Legal Center, without Hebert’s participation, filed an amicus brief for five former Republican officeholders in support of the act.

This article is reprinted with reprinted with permission from the April 27, 2009, issue of Legal Times. ©2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.