Supreme Court Preserves Voting Rights Act Oversight Provision

Court Refrains From Deciding Constitutionality Of Section 5, Issuing Decision On Narrow Grounds

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WASHINGTON – In an 8-1 vote today, the Supreme Court left in place the preclearance requirements of the Voting Rights Act. Under Section 5 of the Act, jurisdictions with a history of voting discrimination must obtain approval from either the Justice Department or a federal court before implementing any changes in their voting practices or procedures.

The American Civil Liberties Union had intervened in the case, Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), to defend Section 5 on behalf of an African-American voter who lives in an Austin, Texas utility district that had asked for the preclearance provision to be declared unconstitutional.

"For more than 40 years, Section 5 has been a critical element of perhaps the most successful civil rights statute this country has ever enacted," said Steven R. Shapiro, Legal Director of the ACLU. "As Chief Justice Roberts recognized, the Voting Rights Act has been instrumental in reducing voting discrimination, increasing minority voter registration and multiplying the number of minority officeholders throughout the nation. But, as Congress recognized when it reenacted Section 5 only three years ago, voting discrimination is sadly not a relic of the past and Section 5 therefore continues to play a vital role in ensuring that all citizens have an equal right to participate in the political process."

It was widely expected that the Supreme Court would rule on the constitutionality of Section 5 in the NAMUDNO case. Instead, in an opinion written by Chief Justice Roberts, the Court declined to decide the constitutional question and resolved the case on narrower grounds.

Under the Voting Rights Act, "political subdivisions" can "bail out" of the preclearance provision of Section 5 if they can demonstrate they have not discriminated against minority voters for a 10-year period. The Court today held that the municipal district in this case was a political subdivision entitled to seek a bailout. Because a successful bailout would enable the district to avoid the requirements of Section 5, the Court concluded that it was unnecessary for it to address the constitutionality of the preclearance requirements.

"The district was, in effect, asking the Supreme Court to declare Section 5 unconstitutional because it has been so successful," said Laughlin McDonald, Director of the ACLU Voting Rights Project. "The Supreme Court declined that invitation. Moreover, by liberalizing the bailout provisions of the Voting Rights Act, today's decision makes it more difficult for jurisdictions covered by Section 5 to complain that there is no escape from its preclearance requirements."

The Voting Rights Act was first adopted by Congress in 1965, and Section 5 has been extended on four separate occasions. Most recently, overwhelming and bipartisan majorities in both the House and Senate voted in 2006 to extend Section 5 for another 25 years after conducting extensive hearings on the ongoing problem of discrimination in voting.

"We have made progress toward voting equality in Texas and elsewhere," said Lisa Graybill, Legal Director of the ACLU of Texas. "But we have not eliminated voting discrimination or the need for vigilance in combating it. Today's decision will help to ensure equal voting rights for all Texans."

Attorneys representing the African-American voter include Shapiro of the national ACLU, McDonald of the ACLU Voting Rights Project, Graybill of the ACLU Foundation of Texas, Arthur B. Spitzer of the ACLU of the National Capital Area, and Michael Kator and Jeremy Wright of Kator, Parks & Weiser, P.L.L.C.

The Supreme Court's opinion on the case can be found online at:
www.aclu.org/scotus/2008term/39106res20090323/39106res20090323.html

For more information on this case, go to: www.aclu.org/votingrights/minority/37008lgl20090302.html

More information of the work of the ACLU Voting Rights Project is available at: www.aclu.org/voting-rights