The Supreme Court granted review today in Northwest Austin Municipal Utility District Number One v. Michael Mukasey, a case revolving around whether or not there is still sufficient justification to force municipalities to have their districts pre-approved by Congress.

§5 of the Voting Rights Act, now 42 U.S.C 1973(c), forces certain ‘covered jurisdictions’ to have voting procedures pre-cleared by a three-judge panel from the District Court for the District of Columbia, per 28 U.S.C 2284. All appeals are immediately directed towards the Supreme Court and bypass the Court of Appeals.

If localities wish to change their voting procedures or practices, they must

institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b (f)(2) of this title

However, per §4 of the VRA and 42 U.S.C 1973(b) localities may ‘bail out’ of the program if they have had no infractions of the VRA in the last 10 years.

In the case here, the Northwest Austin Municipal Utility District Number One complied with §5 of the VRA and brought a case under §4 of the VRA in the US District Court for the District of Columbia in order to apply for a bail out. The district argued that they were eligible for the bailout per §4 based on their impeccable record of guaranteeing voter rights. Alternatively, they argue that §5 is unconstitutional when set to the congruence-and-proportionality test set out in City of Boerne v. Flores (1997). They maintain that if a district with a record like this one cannot activate a §4 bail out, §5 effectively binds districts indefinitely.

On May 30, 2008, the district court ruled against the district holding that (1) the district is not an ‘political subdivision’ as defined in the section and therefore is not eligible for §4 relief, (2) the rational-basis test is the appropriate test for concerns under the fifteenth amendment and §5 satisfies said test, and finally (3) §5 also passes the more stringent congruence-and-proportionality test.

The VRA gives the district the opportunity to appeal directly to the Supreme Court and therefore their case not heard by any intermediate appellate court. In one of their briefs to the Supreme Court (here), the district argues that, among other reasons, the election of Barack Obama shows that the United States political arena has changed drastically from the one that existed when the VRA was passed in 1965.

There is no warrant for continuing to presume that jurisdictions first identified four decades ago as needing extraordinary federal oversight through §5 remain uniformly incapable or unwilling to fulfill their obligations to faithfully protect the voting rights of all citizens in those parts of the country.

The brief for the appellant, the district, is due on February 19 and the response from the appellee will be due on March 20. The court will almost certainly hear arguments during the April sitting, which begins on April 20 and lasts until April 29.


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