ACS National Convention

June 14 - 16, 2012

Washington, DC

Register Now

Login:

Northwest Austin Municipal Utility District Number One v. Holder

March 23, 2012
Remembering John Payton
by Nicole Flatow

The country lost a civil rights giant, with the passing of president and director-counsel of the NAACP Legal Defense and Education Fund, John A. Payton. He died suddenly on Thursday at Johns Hopkins University Hospital after a brief illness, The Root reports.

Payton led LDF in several major Supreme Court victories, including Northwest Austin Municipal Utility District v. Holder, which rejected a challenge to the constitutionality of a core provision of the Voting Rights Act of 1965, and Lewis v. City of Chicago, a major employment discrimination victory, according to a statement from LDF.

The statement adds:

Widely considered one of the country's most skilled members of the Supreme Court bar, John Payton's enduring legacy will be his commitment to a principle articulated by LDF's founder, Charles Hamilton Houston. "What I am more concerned about," Houston said, "is that the Negro shall not be content simply with demanding an equal share in the existing system. It seems to me that his historical challenge is to make sure that the system [that] shall survive in the United States of America shall be a system which guarantees justice and freedom for everyone."

LDF's work will go on, in just the way that John would have wanted.

President Obama said today in a statement:

Michelle and I were saddened to hear about the passing of our dear friend John Payton. As president and director-counsel of the NAACP Legal Defense and Education Fund, John led the organization's involvement in five Supreme Court cases.

A true champion of equality, he helped protect civil rights in the classroom and at the ballot box. The legal community has lost a legend, and while we mourn John's passing, we will never forget his courage and fierce opposition to discrimination in all its forms.

Payton was a voice for the civil rights community, and a leading constitutional thinker. During a 2009 American Constitution Society event at the National Press Club on “The Road from Lincoln to Obama,” Payton discussed the importance of shedding our racist history as we move forward with our constitutional jurisprudence.

“I would say Reconstruction didn’t fail. It was destroyed,” he said.

He continued:

More
Tags:
Civil rights, Fidelity to the Constitution, Supreme Court, Voting rights, Racial justice, Constitutional Interpretation and Change, Democracy and Voting, Equality and Liberty, Fifteenth Amendment, Fourteenth Amendment, John Payton, Lewis v. City of Chicago, NAACP Legal Defense & Educational Fund, Northwest Austin Municipal Utility District Number One v. Holder, Reconstruction Amendments, Thirteenth Amendment
January 24, 2012
Perry v. Perez: Not That Big a Deal . . . But Wait
Guest Post

By Daniel P. Tokaji, a law professor at The Ohio State University Moritz College of Law and senior fellow for Election Law @ Moritz.

Whenever the U.S. Supreme Court decides a case, especially one involving elections, commentators have a tendency to wax eloquently about its importance. But let’s face it, not all Supreme Court decisions are really that important. A case in point Friday’s opinion in Perry v. Perez, regarding Texas’ redistricting plans.

To be sure, the decision is important to Texans wondering what their congressional and state legislative districts will look like. It also helps clarify a procedural question involving preclearance under Section 5 of the Voting Rights Act of 1965 (“VRA”). But the broader significance of Friday’s per curiam decision is limited. What’s most significant is an issue the Court doesn’t address: whether Section 5 is constitutional. That’s the 800 pound gorilla which the justices (with the noteworthy exception of Justice Thomas) avoid mentioning – but will probably come before them in the not-too-distant future.

A bit of context is useful. Every state must redraw its congressional and state legislative maps at the start of each decade to account for population shifts. Section 5 of the VRA requires some jurisdictions to obtain “preclearance” of voting changes – including redistricting plans – before they take effect. As originally enacted, Section 5 covered Southern states that excluded African Americans from voting. Coverage was later expanded to include states with a history of excluding Latinos and other groups from fully participating in the electoral process. Texas is among the states now covered by Section 5, which was reauthorized and extended for another 25 years in 2006. To obtain preclearance, covered jurisdictions must show that their proposed changes don’t have a discriminatory purpose or retrogressive effect on minority voters.

At issue in Perry v. Perez is what should happen when a state legislature has drawn new districts, but no preclearance decision has yet been made. After the 2010 Census, the Texas legislature redrew its congressional and state legislative lines. As required by Section 5, the state then requested preclearance of the legislature’s plan, filing suit in the federal district court in Washington, D.C. That court denied Texas’ motion for summary judgment, but hasn’t yet ruled on whether preclearance should be granted. Meanwhile, separate lawsuits were filed in another federal court, alleging that the redistricting plans violate the U.S. Constitution and another section of the VRA. (You can find court filings from the cases here and here.)

Here’s the problem: Under Section 5, the 2011 Texas redistricting plans can’t take effect until they’ve been precleared. But the old districting plan, the one in effect through 2010, can’t be used either – that would violate the one person, one vote rule due to population shifts of the last decade. The lower court was therefore left with no choice but to draw its own map. That map departed from the legislatively-drawn map in significant respects, even though the court didn’t find a likelihood that plaintiffs would prevail in their legal challenges to it. Texas argued that the court didn’t show enough deference to the un-precleared plans drawn by the state legislature.

More
Tags:
Redistricting, Voting rights, Constitutional Interpretation and Change, Democracy and Voting, Guest Post, Northwest Austin Municipal Utility District Number One v. Holder, Perry v. Perez, Section 5, Texas, Voting Rights Act
July 25, 2011
Will the Roberts Court Kill the Voting Rights Act?
Guest Post

By Dr. Greg Rabidoux

Speaking before a joint session of Congress on March 15, 1965, LBJ urged support for the Voting Rights Act (VRA). He implored all members to get behind it or risk being on the wrong side of history. He asserted that “Experience has clearly shown that the existing process of law cannot overcome systematic and ingenious discrimination. No law…can ensure the right to vote when local officials are determined to deny it.”

That was then, and Justice Clarence Thomas (among others) and his assertion that the time for the Voting Rights Act has indeed come and gone, is now.

But before we throw dirt on the VRA once and for all, a bit of context is in order.

With the current redistricting cycle full steam ahead, the VRA becomes controlling when plaintiffs seek to challenge newly drawn maps of legislative districts with sections (2) and (5) being invoked. Section 2 prohibits any “voting qualification or prerequisite to voting, or standard, practice or procedure” being imposed or applied to any State or political subdivision” that would “deny or abridge the right of any citizen of the United States to vote on account of race or color” while Section (5) requires a DOJ or US District Court of DC “pre-clearance” when seeking to administer any voting qualification, procedure, standard, practice or procedure “different from that in force or effect November 1, 1964.”

Ever since Allen v State Board of Elections (1969) the VRA (sections 2 and 5) have been the “go to” weapon in any savvy plaintiff’s arsenal to attack partisan maps that target minority representation and political voting power for dilution. But under the Roberts Court, those days may be fast coming to a halt.

Currently, there are two cases that especially merit our close watch. Shelby County, Alabama v Holder (2010) is challenging the constitutionality of section 5. They argue that the VRA is a relic of the past and its intent to “enforce the 15th Amendment by appropriate legislation” is as outdated as hula contests and hoop skirts.

More
Tags:
Redistricting, Supreme Court, Voting rights, Constitutional Interpretation and Change, Democracy and Voting, Alabama v. Holder, Chief Jusitce John Roberts Jr., Dr. Greg Rabidoux, Guest Post, LaRoque v. Holder, Northwest Austin Municipal Utility District Number One v. Holder, Roberts Court, Shelby County, Voting Rights Act
July 1, 2009
Obstacles To Minority Voting Remain, Report Says
In the Supreme Court's recent decision in Northwest Austin Municipal Utility District Number One v. Holder, Justice Clarence Thomas filed a dissent concluding that the Court should have found a major provision of the Voting Rights Act, Sec. 5, to be unconstitutional. None of the other justices joined Thomas' dissent, and the majority decided the case without reaching the constitutional issue.

Charles S. Johnson, a partner at Holland & Knight and board president of the Southern Regional Council, in a post for the southernchanges blog wrote:

In the course of his opinion, Justice Thomas acknowledged the history of coordinated intimidation and violence which prevented people from voting during the Jim Crow era. He acknowledged that this campaign of violence was eventually supplemented and in part replaced by more subtle methods of discrimination, such as discriminatory literacy tests and voter qualification laws. He acknowledged that case-by-case voting rights litigation in the years prior to the adoption of the Act was inadequate to ensure that all citizens were able to vote.

According to Justice Thomas, however, the kind of discrimination which previously justified Section 5 no longer exists. As proof, he noted that the systematic campaigns of intimidation and violence are gone, as are the discriminatory voter qualification laws. Although Congress had taken note of ‘second generation barriers' constructed to exclude minority voters, Justice Thomas concluded that evidence of such barriers was not sufficient to justify the continued use of Section 5.

Contrary to Justice Thomas' assertion, barriers to voting continue to be erected in jurisdictions covered by Section 5. Evidence of these barriers is described in the Congressional record and in a recent study by the Southern Regional Council. This evidence demonstrates ongoing attempts to dilute and diminish minority voting strength, including restrictions on registration and voting, discriminatory annexations and de-annexations, high school diploma requirements for holding office, discriminatory consolidations, and relocation of polling places.

Johnson's entire blog post is here. For further analysis of Northwest Austin Municipal Utility District Number One v. Holder see Mark A. Posner's guest blog here.

More
Tags:
Voting rights, Constitutional Interpretation and Change, Northwest Austin Municipal Utility District Number One v. Holder, Voting Rights Act
May 5, 2009
Awaiting, with Trepidation, High Court’s Decision on Voting Rights Act
Guest Post
By Mark A. Posner, Senior Fellow, Lawyers' Committee for Civil Rights Under Law; Former Special Sec. 5 Counsel, Civil Rights Division, U.S. Department of Justice

Ever since July 2006, when Congress acted with overwhelming bipartisan majorities to reauthorize the "preclearance" requirement of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, the civil rights community has waited with a mixture of anticipation and trepidation for the day when proponents and opponents of this key voting rights provision would stand before the Supreme Court to argue its constitutionality. That day, April 29, 2009, has finally come and gone, in the case of Northwest Austin Municipal Utility District Number One v. Holder. The Court's decision is expected in late June, and until then one is left to ponder and dissect the over 60 minutes of intense questioning offered up by eight of the nine Justices. Unhappily, this review strongly suggests that trepidation should be the predominant feeling while we wait for the Court to rule.

By way of background, Section 5 requires certain jurisdictions with a history of voting discrimination to obtain federal approval ("preclearance"), from either the Justice Department or the U.S. District Court for the District of Columbia, before implementing any change in a voting practice or procedure. Preclearance is obtained by demonstrating that the change does not have a discriminatory purpose or effect. The covered jurisdictions include all or parts of 16 states located primarily in the South and Southwest. Congress initially adopted Section 5 in 1965, and then reauthorized the statute in 1970, 1975, 1982, and 2006. The Supreme Court has upheld the constitutionality of the statute in four previous cases. In the current case, a three-judge panel of the D.C. District Court unanimously found the reauthorization to be constitutional, 557 F. Supp. 2d 9 (2008), and the plaintiff appealed to the Supreme Court.

As the oral argument began, much attention was focused on Justice Anthony Kennedy, as the justice who might be a swing vote on a Court that often has been sharply divided on civil rights issues. Justice Kennedy asked questions of all three attorneys who argued, the attorney for the plaintiff (an obscure municipal utility district located in Austin, Texas), the Deputy Solicitor General of the United States, and a civil rights attorney who spoke on behalf of several individuals and organizations that had intervened to defend the statute. Justice Kennedy's questions repeatedly returned to the single issue which he apparently believes is paramount: whether the record before Congress when it reauthorized Section 5 in 2006 justified Congress's decision to treat different states differently, keeping some states covered by Section 5 while leaving other states not covered. As the Justice colorfully put it, the question presented for him is whether Congress has justified treating the "sovereignty" of the covered states as being less than the "sovereign dignity" of the non-covered states.

Making this issue the sine qua non of whether Section 5 is constitutional puts Section 5 on shaky ground, in large part because this fundamentally alters the test the Court previously has employed to decide Section 5's constitutionality. In 1966, when the Court first upheld Section 5, the Court concluded that the coverage decisions made by Congress were rational, and thereafter the Court held that the validity of a Section 5 reauthorization depends on whether Congress has compiled a record demonstrating that voting discrimination continues to be a widespread and substantial problem in the covered areas. In reliance on this clear precedent, Congress created a massive pre-enactment record that made what was thought to be the necessary showing. This record also indicated that voting discrimination is a greater problem in the covered, rather than the non-covered, jurisdictions, but Congress did not make this question its primary focus. At oral argument, Justice Ginsburg nonetheless sought to suggest that there was quite a bit of information presented to Congress prior to the 2006 reauthorization that compared the covered and non-covered jurisdictions.

More
Tags:
Supreme Court, Voting rights, Democracy and Voting, Guest Post, Justice Anthony Kennedy, Northwest Austin Municipal Utility District Number One v. Holder, Voting Rights Act

Site designed by Free Range Studios
Site developed by Jackson River

1333 H St, NW, 11th Floor
Washington, DC 20005

T. (202) 393-6181
F. (202) 393-6189
info@ACSLaw.org