Posted May 6, 2009 by J. Gerald Hebert

Feds Still Must Safeguard the Vote

The following was published as a guest column in the Richmond Times-Dispatch on May 1, 2009. 

The other day, the U.S. Supreme Court heard arguments in the most important voting rights case to come along since Bush v. Gore. The Court's decision, expected this summer, will have a lasting impact on our democracy.

The case involves a small municipal utility district in Texas that wants to avoid having to comply with certain requirements under the Voting Rights Act. But the Voting Rights Act doesn't permit the district to be exempted. So in Northwest Austin Municipal Utility District Number One v. Holder, the district has argued that if it isn't entitled to the exemption, then the Voting Rights Act is an unconstitutional infringement on states' rights because the district has never discriminated against anyone in the voting process.

To unravel this case, let's start with the Act itself, passed by Congress in 1965 to rid the nation of discrimination in voting.

As originally drafted, the Act contained some temporary provisions -- the most controversial of which required certain states (mostly in the Deep South) to obtain federal approval of any change in procedures that involved voting. Virginia, which had a long history of racial discrimination in voting, was one of the states. The Act was "aimed at areas where widespread discrimination has existed through misuse of tests or devices even though it exclude[d] certain areas where there is voting discrimination through other means."

Thus, any time Virginia or any of its political subdivisions made any changes in the voting process (e.g., moving a polling place, changing the hours that the voter registration office was open), it had to get prior approval, known as preclearance, from federal authorities.

As the Supreme Court found in 1966 when it upheld the constitutionality of the Act, "Congress knew that some of the States . . . had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees." To prevent "similar maneuvers in the future in order to evade the remedies for voting discrimination," Congress required the targeted states and political subdivisions to obtain federal approval of any new voting rules or procedures.

Congress had high hopes when it passed the Voting Rights Act that our nation would quickly rid itself of racially discriminatory voting procedures, and so it made the preclearance provisions temporary. That progress didn't happen. When the provisions were due to expire, Congress reconsidered them and found that racial discrimination was still rampant. It extended them -- as it has done four times since: in 1970, 1975, 1982, and 2006.

In 1982, however, Congress felt it was time to give state and local governments an incentive to end discriminatory voting practices. So it amended the law to allow local governments to obtain an exemption if they could show a sustained record of non-discrimination in the voting process. To date, 17 jurisdictions (all here in Virginia) have sought an exemption -- and all have been successful. I served as legal counsel to all of them, and their experiences prove quite convincingly that the exemption process, known as bailout, is administratively easy, efficient, and cost-effective.

The municipal utility district that has brought this latest challenge to the Voting Rights Act claims that it cannot exempt itself from the Voting Rights Act because the bailout process is unworkable. This is wrong, as the 13 counties and four independent cities in Virginia can attest.

The municipal utility district claims that Congress amended the Act to permit "political subdivisions" to bailout, and that as a political subdivision, it should be permitted to bailout. The flaw in the argument is that the Voting Rights Act has always defined political subdivisions as a state or "any other subdivision of state which conducts registration for voting." There is nothing in the 1982 amendments to the Voting Rights Act or the legislative history showing that Congress intended to enlarge the political subdivision definition, so the municipal utility district's argument that the Act permits it to bailout is wrong.

Those are the specifics of the case. What is at stake is the most successful piece of civil rights legislation ever passed in this nation -- one that Congress reauthorized by a staggering margin in the House and unanimously in the Senate in 2006. After hearing from dozens of experts and witnesses, and compiling over 15,000 pages of evidence, Congress concluded that while great strides had been made in the treatment of minorities since 1965, the protections still needed to be extended to combat ongoing discrimination.

As is usually the case these days, experts are predicting that the Supreme Court case will come down to how Justice Anthony Kennedy, the new "swing" Justice, votes. If Kennedy follows precedent and does not join with other Justices who want to re-write the statute through judicial activism, then the Act will survive yet another attack. And jurisdictions like the 17 in Virginia that already proved that they have a clean bill of health in their voting process, will be able to pursue bailout when they feel the time is right.

J. Gerald Hebert is executive director of the Campaign Legal Center and a resident of Alexandria. He is former Acting Chief of the Voting Section of the Department of Justice's Civil Rights Division, and the attorney representing all 17 jurisdictions that have bailed out from coverage under the Voting Rights Act .