WASHINGTON — A seemingly minor Texas dispute that began over moving a voting site from a garage to an elementary school will be argued before the Supreme Court Wednesday — with the potential to overturn a core piece of the Voting Rights Act that protects minority voters.
The so-called "guts" of the law — Section 5 — requires Justice Department pre-clearance of voting plans in nine Southern states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia — and portions of seven other states, including North Carolina.
Officials at a North Austin, Texas, utility district, incensed at what they had to go through to move a voting site from a neighbor's garage to an elementary school, argue that the provision, first imposed in civil rights legislation in the early 1960s, is no longer necessary to protect minority interests.
"The law as it's currently used is based in part on the Goldwater versus Lyndon Johnson election of 1964," said Ed Blum, a visiting fellow at the American Enterprise Institute, who is a critic of the provision. "Using election data that goes back to 1964 doesn't make sense in 2009."
Several critics point to the election of Barack Obama, the nation's first African-American president, as evidence that the law is obsolete.
Congress, on an overwhelming bipartisan basis, renewed the Voting Rights Act in 2006 for 25 years. But the supporters of the Northwest Austin Municipal Utility District Number One, known as MUD, say that lawmakers overreached by maintaining the pre-clearance provision and that it is, therefore, unconstitutional.
"It's our belief that the congressional record does not show the kind of Jim Crow gamesmanship that requires this kind of oversight today," said Blum. The MUD challenged the law and lost in federal district court last year, leading to the appeal to the Supreme Court.
The case has become a cause celebre among 18 groups representing minorities, including the Mexican American Legal Defense Fund and the NAACP Legal Defense Fund, which have weighed in on the case.
"What's at stake is the continued protection of minority voters from jurisdictions that try to replace one discriminatory mechanism with another," said Nina Perales, the MALDEF attorney who is representing Latino voters who live in the Austin municipal utility district.
"The act is still very much needed. Congress did its job in 2006, collecting 17,000 pages of information," said Perales. "The record shows continuing discrimination."
Texas has drawn pre-clearance objections in redistricting in 2001, and the 1990s, although not in the contentious mid-decade redistricting in 2003 when senior Justice Department officials overruled career lawyers.
As for the first African-American president being elected, Perales said that it's not relevant to the history of discrimination in the areas that must be pre-cleared. "In jurisdictions covered by section 5, such as Texas, Obama didn't do great," she said.
The Obama administration has thrown its support behind the case, with Principal Deputy Solicitor General Neal Katyal arguing the case for the Justice Department.
Renea Hicks, who represents Travis County in support of the Voting Rights Act, said that the case will turn on whether "we're still going to have the most important, most effective civil rights legislation in our history."
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