Special Report

A Permanent Emergency

According to certain provisions of the Voting Rights Act, the clock stopped in 1965.

By 11.19.08

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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Section 5 of the Voting Rights Act is an "emergency" law originally enacted in 1965.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.

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About the Author
Jack Park is an attorney with the Atlanta law firm Strickland Brockington Lewis LLP.