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April 15, 2009

TEXAS VOTING RIGHTS ACT CASE WILL BE FELT IN SOME CALIFORNIA COUNTIES

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - A high-profile voting rights case to be argued before the U.S. Supreme Court this month could have major implications for four counties in California.

The case involves a challenge to a controversial section of the federal Voting Rights Act, originally passed in 1965 to tackle racial discrimination in elections and reauthorized by Congress in 2006. Northwest Austin Municipal Utility District Number One v. Holder, 08-322.

The provision, Section 5 of the act, requires political subdivisions in certain states with a history of tainted elections to notify the U.S. Justice Department of any changes to their voting regulations.

Although the case before the court, to be argued April 29, comes out of suburban Austin, Texas, how it's resolved will have repercussions for Kings County, Merced County, Monterey County and Yuba County, which all are covered by the so-called "preclearance" provision of the Voting Rights Act.

California Attorney General Jerry Brown has joined five other Democratic attorneys general from states covered by Section 5 in filing an amicus brief supporting the provision.

Section 5 covers either partly or in full 16 states based on a history of either racial or language-based discrimination in elections.

The case before the court concerns the obscure Northwest Austin Municipal Utility District Number One, a tiny administrative jurisdiction in Texas that claims it should be able to take advantage of a subsection of the law that allows certain districts be exempted from the provision if they can demonstrate no history of voting discrimination.

The district in question is in Travis County, Texas, which falls under Section 5, but has its own elections.

In May 2008, a federal judge in the District of Columbia concluded the district could not opt out of the preclearance requirements, holding it did not qualify as a political subdivision that would be eligible for such relief.

The subdivision could only be removed from Section 5 oversight if Travis County or the state of Texas as a whole successfully sought to opt out, the court held.

As part of its appeal, the subdivision's attorneys are also arguing Section 5 is unconstitutional on the grounds that it exceeds the enforcement powers granted to Congress by the 15th Amendment, which guarantees voting rights.

In California, supporters of Section 5 point out that, as recently as 2002, the U.S. Justice Department questioned proposed changes to the way Chualar Union Elementary School District in Monterey County elects its school trustees.

The district, which normally votes to elect members by geographical area, had wanted to introduce an at-large system, but the Justice Department said the move could have a discriminatory impact on Hispanics because they would be less enabled to vote for their preferred candidate.

The department concluded that the proposed change "was motivated, at least in part, by a discriminatory animus," which prevented it from going into effect.

In a statement Tuesday, Attorney General Brown described the Voting Rights Act as "a safeguard against discrimination" that has worked well ever since it was enacted.

"Preclearance encourages the participation of minority groups at an early stage of a covered jurisdiction's efforts to change its election practices, prevents discrimination in election procedures and protects covered jurisdictions against costly litigation alleging discrimination," Brown added.

In the amicus brief Brown has joined in the Texas case, Roy Cooper, the Democratic attorney general of North Carolina, defended the provision's constitutionality.

"Any assertion that Section 5 constitutes an undue intrusion on state sovereignty does not withstand scrutiny," Cooper wrote.

Covered states have found the procedure to be "routine and painless" and have recognized the benefit of a law that "encourages covered jurisdictions to consider the views of minority voters early in the process of making an election law change," Cooper added.

Other states aren't as welcoming of federal oversight as California and the other states that signed onto the brief.

Sonny Perdue and Bob Riley, the Republican governors of Georgia and Alabama, respectively, have filed separate briefs stressing their states' progress opening up voting rights in recent decades.

Ralph Kasarda, a staff attorney at the Pacific Legal Foundation, a conservative legal group based in Sacramento, said such progress has happened in California as well.

He said Section 5 was justified when first enacted in 1965 because of "government-sponsored racism" in certain parts of the country.

The problem was serious enough to trump the constitutional concerns about the provision, which "violates the principles of federalism," Kasarda added.

He said Congress didn't take into account the cultural shift that had occurred since the 1960s when it voted to reauthorize the act in 2006.

"In California we have many minorities in office," Kasarda said. "I don't think we have this blatant discrimination."

Striking down Section 5 would still leave much of the act in place, he added, and states could pass their own laws to protect minority voters.

Nicholas Espiritu, a staff attorney in the Los Angeles office of the Mexican American Legal Defense and Educational Fund, warned that allowing smaller jurisdictions like the subdivision in Texas to opt out of the process would be a dangerous step because the Justice Department and civil rights advocates would have a harder time keeping track of election changes.

As for California, Espiritu insisted that Section 5 has continued relevance, particularly in light of the state's growing Latino population.

"It's been very important in California," he said, "especially in ensuring there aren't retrogressive changes that affect minority voting."