How do you end up in the penalty box? Usually, you get there
because you misbehaved, and your stay has a defined length. In
the case of Northwest Austin Municipal Utility District Number
One, known as the MUD, the penalty box is Section 5 of the Voting
Rights Act. The MUD, though, has not misbehaved. Even so, a
three-judge federal district court has decreed that it must stay
in the penalty box for 25 more years without any chance of
release. The MUD has now asked the United States Supreme Court to
reverse that decision. It contends that the three-judge court
misread the Voting Rights Act and that the Act, both as applied
to prevent the MUD from asking for relief and as extended in
2006, is unconstitutional.
Section 5 of the Voting Rights Act is an “emergency” law
originally enacted in 1965. It prohibits “covered jurisdictions”
from making changes in any laws and practices that affect voting
without the permission of the Department of Justice or a
three-judge federal district court in Washington, D.C. The
original “covered jurisdictions” were covered for the good reason
that they discriminated against African-Americans who wanted to
register to vote and kept changing their racially discriminatory
voting laws in order to moot or defeat challenges to their
constitutionality. Congress established a coverage formula that
looked at, among other things, the rate of voter registration and
turnout in the black community. To the surprise of few, nearly
all of the states of the Confederacy failed the test when it was
imposed in 1965.
Since 1965, the Act has demonstrated “bracket creep” in two
directions. First, Congress has extended Section 5 three times.
Originally, it was set to expire after five years, but now it
will not expire until 2031. That is, unless Congress bizarrely
perceives that an emergency that will be 66 years old by then is
still an emergency and extends it again — even though it would
almost be old enough to start drawing Social Security. Second,
the Act has expanded to cover more jurisdictions. In 1978, the
Supreme Court held that the coverage of Section 5 extended to all
entities within a covered jurisdiction that had power over the
electoral process and was not limited to those entities that
registered voters. The MUD and many other entities have been
swept up because of that decision.
Congress did provide a safety valve, known as the bailout
procedure. Covered jurisdictions that have done no wrong for 10
years and can meet certain tests can ask to bail out. According
to the three-judge court, though, not all covered jurisdictions
can bail out because Congress said that only those covered
jurisdictions that register voters can do so Thus, the MUD has
the power to affect elections, so it is covered, but it does not
register voters, so it cannot even try to bail out. In effect, it
is a hostage to Travis County, a larger jurisdiction that, while
it registers voters, has reasons for not trying to bail out. That
said, Travis County opposed the MUD before the three-judge court,
something that is inexplicable as a matter of either the law or
basic fairness and common sense.
This is both a misreading of the Voting Rights Act and
constitutionally untenable. The MUD, a special purpose entity
with 3,500 residents who elect a governing body, has done nothing
wrong, but, until 2031, it has to ask permission before moving a
polling place or conducting a referendum. It, and many other
entities like it, cannot ask for bailout. Cue up “Hotel
California,” where one can check out any time he or she likes,
but can never leave. There is no good reason why Congress should
make the MUD wait on Travis County to do the right thing.
The MUD wants the Supreme Court to declare that it has the right
to ask to bail out. The MUD’s experience shows that residents of
smaller jurisdictions seem to play better among themselves than
residents of larger jurisdictions. Larger jurisdictions like
Travis County should work on their own problems, not inflict
needless work and expense on subsidiary jurisdictions like the
MUD that have done nothing wrong.
Indeed, times have changed. In 2004, in Alabama, the turnout of
African-American voters was 63.9% of their total, while white
voters turned out at a rate of 63.1%. In 2004, in Georgia, black
voters were 27.2% of the State’s total of registered voters and
were 27.5% of the State’s citizen voting age population. These
figures represent dramatic improvement over conditions in 1965.
Meanwhile, the places where problems have occurred, Florida in
2000 and Ohio in 2004, are not covered by Section 5.
The Court should open the door for all covered entities to ask to
bail out. There is no good reason for telling the MUD that it
cannot even ask for relief. The MUD’s appeal gives the Court the
chance to remind Congress that emergencies do not last forever.
