Primed for a Voting Rights Act overhaul

ON MONDAY, A THREE-JUDGE PANEL of the U.S. District Court for the District of Columbia is scheduled to hear arguments in Northwest Austin Municipal Utility District No. 1 vs. Alberto R. Gonzales. It sounds like a ho-hum case, but a great deal is riding on this lawsuit. The outcome could decide the constitutionality of Section 5 of the Voting Rights Act and open the way to ending racial gerrymandering and other political distortions that no longer make

good sense or good policy.

When it was passed in 1965, the Voting Rights Act was crafted to achieve one critical objective: ending the scandalous Jim Crow barriers to voting faced by blacks in Southern jurisdictions. The law banned literacy tests, provided federal election registrars and criminalized harassment of black voters. Section 5 was included in the statute as a temporary insurance policy to prevent new and clever ways for Southern jurisdictions to disenfranchise blacks.

Today, Section 5 -- which was set to expire in 1970 but has been reauthorized four times, most recently in 2006 -- affects nine states and counties in seven others (including four in California -- Kings, Merced, Monterey and Yuba), places where minorities once had extremely low voter registration and election participation rates.

It forbids these states and counties -- and every entity in them that holds government elections -- from enacting any changes to voting procedures without the consent of either the U.S. attorney general or the U.S. District Court for the District of Columbia. Whether it be moving a polling location across the street or congressional redistricting, it must be preapproved.

At issue in the Northwest Austin case is whether the municipal utility district -- also known as a “MUD,” which levies taxes and is considered a “political subdivision” under the Voting Rights Act -- can seek a “bailout” from Section 5.

The “pre-clearance” requirement of Section 5 is unprecedented. Neither before nor since has Congress passed a statute requiring a state or one of its sub-jurisdictions to seek permission from the federal government before local election laws or rules can go into effect. This provision was, and still is, a direct assault on our nation’s constitutional system of federalism. Back in the mid-1960s, it may have made sense to include it in the original law -- given the long, ugly history of the South -- but today it is no longer justified.

The extreme nature of Section 5 was recognized when the Voting Rights Act was passed -- that’s why it had an expiration date. In addition, the “bailout” provision allows jurisdictions with a 10-year record of no voting rights violations to petition to be removed from Section 5 scrutiny. The Northwest Austin MUD is making the claim that it meets the criteria and is entitled to bail out; the Justice Department is fighting the case because it says only counties, which register voters, not MUDs, which are a subset of counties, are eligible for a bailout. The MUD’s position is that, having strictly adhered to the law, if it is not allowed to seek a bailout, then Section 5, as it is applied, is unconstitutional.

The Northwest Austin Municipal Utility District serves about 3,500 people in a suburb in central Texas, but its argument could be made for many of the cities, towns, school boards and utility districts covered by Section 5 in 2007. The extreme oversight it calls for and, as important, the benchmarks and rules codified under it are simply no longer necessary or, worse, are creating unintended problems.

During Voting Rights Act reauthorization hearings last year, Congress recognized that to justify Section 5 it needed to show evidence of ongoing racial hostility to minorities in the jurisdictions covered by the law. But try as it might to document systematic racial harassment and voting irregularities, it failed. The broad patterns of discrimination in place in 1965 -- when, for example, only 6% of Mississippi’s blacks were registered to vote, while 70% of whites were -- happily don’t exist anymore. Furthermore, the data that do exist (mostly anecdotes concerning purged names from voter rolls, polls closing early or opening late, and polling places running out of ballots) show that barriers to voting are just as prevalent outside the covered states, in places like Arkansas and Ohio, as they are in covered ones like Georgia and Texas.

Moreover, testimony revealed how Section 5 jurisdictions have been forced to practice racial gerrymandering. In the 1960s and thereafter, these jurisdictions were denied approval for changes in their election rules and voting districts unless they met guidelines that, in essence, guaranteed enough “majority-minority” districts to bring overall representation into line with racial demographics. These guidelines have stayed the same even as minority populations have become more dispersed in the last three decades.

Now, those who draw up voting districts must systematically “harvest” blacks (or Latinos) from multiracial, multiethnic neighborhoods in order to meet the requirements of those old guidelines, creating districts with no sensible relationship to geography and no real civic ties. This electoral apartheid has contributed to the ideological polarization of voting districts by insulating white (mostly Republican) officeholders from minority voters and issues specific to minority communities and, conversely, minority elected officials (mostly Democratic) from white voters.

If the U.S. District Court or, perhaps ultimately, the Supreme Court allows the Northwest Austin MUD to bail out from Section 5 coverage, hundreds and perhaps thousands of small jurisdictions within larger states and counties covered by Section 5 will be able to follow suit, taking their good records on voter rights to the government and taking themselves out of the group of jurisdictions subject to the old guidelines . That would mitigate much of the current racial gerrymandering.

And if the courts strike down Section 5 altogether, it may compel Congress to stop reauthorizing the aging 1965 Voting Rights Act and craft new, colorblind voting rights legislation to address contemporary problems.

Some observers believe that because of our nation’s history, the Voting Rights Act is sacrosanct, and they doubt the courts will act to change it in any way. But fixing its defects would ensure that the act’s original goal -- incorporating minorities fully into the electoral process -- would be strengthened, not weakened. Here’s hoping the Texas MUD succeeds.

Edward Blum is a visiting fellow at the American Enterprise Institute and the author of a forthcoming AEI Press book on the Voting Rights Act.