X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The small utility district on the outskirts of Austin, Texas, had a simple wish: to move its polling place from a residence to a school. It may have been simple, but it wasn’t easy. The move needed approval from the Justice Department in Washington. As it happens, the Northwest Austin Municipal Utility District No. 1 (population 3,500) is one of the areas of the country required by federal law to get permission from the government before making any changes to its voting rules. Now the utility district — with the help of some conservative legal firepower — has decided to mount the most significant assault on the Voting Rights Act in a quarter of a century. The case, filed last year in the U.S. District Court for the District of Columbia, argues that the federal government’s oversight of local voting rules is unconstitutional. And it was selected and prepared with one goal in mind, to get the issue before the Supreme Court. Unsurprisingly, it’s drawing attention from civil-rights groups, who fear the wolf is at the door. The National Association for the Advancement of Colored People, for instance, has hired former Clinton administration solicitor general Seth Waxman to fend off the challenge. The suit targets the section of the act — which Congress overwhelmingly voted to reauthorize last summer — that requires certain counties and states to seek federal approval before making changes to their voting rules. Known as “pre-clearance,” the section was one of the ways the federal government prevented Southern states from continuing to discriminate against African-Americans after the landmark civil-rights legislation passed in 1965. But the federal government only oversees certain states and counties, the ones that most egregiously suppressed minority voting during the 1964 election. The jurisdictions under such federal authority have remained virtually unchanged, except for a few additions in the 1970s. “Our primary thing is, when they reauthorized the act this time, nobody went back and said, �Let’s update the test,’ ” says Gregory Coleman, a partner at Weil, Gotshal & Manges, where he is representing the Texas district pro bono. “ What are jurisdictions doing in 2004 and 2006?” Coleman and other conservatives see the continued oversight as an overreach of federal power. For the federal government to apply a rule to an entity that has no history of discrimination is “arbitrary and irrational,” Coleman wrote in his Aug. 4 complaint, and it “infringes on the rights of an entire generation of voters who were not even alive when those discriminatory practices were ended.” As Edward Blum, a fellow at the American Enterprise Institute working with Coleman, puts it, “Congress didn’t want to make a very hard political argument that one of the provisions of the Voting Rights Act may have outlived its usefulness.” They are hoping that the case will end the federal oversight — or at least force Congress to revise which areas are covered. But Coleman and Blum are up against the weight of history. The Supreme Court has upheld the pre-clearance provision twice — once in the 1966 case South Carolina v. Katzenbach and again 14 years later in City of Rome v. United States. “Overwhelming evidence suggests that racial discrimination in elections still exists and still needs to be addressed by the federal government,” says David Becker, an attorney with People for the American Way, whose organization has intervened against the case. Other groups that have entered the fray include the Lawyers’ Committee for Civil Rights Under Law, the Mexican American Legal Defense and Educational Fund, and the American Civil Liberties Union. Such opposition is hardly surprising. More than almost any other piece of legislation in recent time, the Voting Rights Act is synonymous with civil rights. Historians have pointed to it as the foundation of the “quiet revolution” against deep-rooted voting discrimination across the South. “This has been a source of considerable constitutional controversy since it was first enacted,” says Samuel Issacharoff, a New York University law professor. “These are very hefty positions, each of which has a constitutional pedigree.” THE DISTRICT LINE The Northwest Austin Municipal Utility District is a 700-square-mile swath of suburban tract housing on the edge of Austin. It was formed in 1988 by a Texas developer to build bond-financed sewage and water lines in what was then an undeveloped neighborhood.
Voting Rights Act at a Glance
Congress first passed the Voting Rights Act in 1965 and has renewed it four times since, most recently last year.Key provisions: Most of the act, which bans racial discrimination during elections, is permanent. But some of its provisions come up for renewal. Among those is a section requiring federal oversight of local changes to voting rules in certain jurisdictions.States under federal oversight: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, and portions of California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota.Voting rights enforcement cases: Between 1982 and 2004, the Justice Department took action in 105 instances in nine states. During that time, the DOJ got involved in Texas voting matters 29 times — more than in any other state.

Elections to the five-person utility board were not heavily contested until 2002. By then, the neighborhood had grown from barely a dozen residents to more than 3,500, and the homeowners association had grown weary of the developer-backed board. Residents accused the utility district’s attorney of suppressing voter turnout by holding utility-board elections in a different location — a resident’s home — than the citywide elections. “We had an attorney who had some conflicts of interests,” says Donald Zimmerman, a board member. That year, the candidates backed by the homeowners association swept out the sitting board. Zimmerman, who works at a local car dealership, became president. His first act: to move the polls from the residential house to a local school, where all of the other municipal elections are held. It was then the rookie board members learned about pre-clearance. “We’ve never done anything to discriminate against anyone, so we don’t know why we are subject to it,” says William Ferguson, now president of the board. Indeed, the district was hardly a microcosm of the city. For one, residents are nearly 80 percent white. The single biggest minority by far is Asian — not Hispanic or African-American — and the neighborhood’s median income is nearly double that of the average Austin resident. But the district’s lawyer saw no way out of the federal oversight, so the board forked over $1,250 in legal fees and, within a few months, won approval from the Justice Department. Zimmerman wasn’t pleased with the situation, but in 2002 the district had more pressing legal problems. He believed the city of Austin was overcharging the district’s residents in property taxes, but lawyer after lawyer turned his idea down. Taking on Austin, they told him, was too “politically charged,” Zimmerman says. Then he found Coleman. Zimmerman says Coleman took one look at the Austin tax issue and said he would take the case for free because he believed they were right. “I was just stunned,” Zimmerman says. “Most people have to have monetary incentives or something. He took it because he’s an incredibly honest guy.” A TRUE BELIEVER Coleman, 43, has long had an interest in litigation over the scope of federal power. A 1992 graduate of the University of Texas School of Law, he clerked for Judge Edith Hollen Jones of the U.S. Court of Appeals for the 5th Circuit and, later, for Supreme Court Justice Clarence Thomas. He headed into private practice but remained an active member of the Federalist Society. In 1997, Coleman met Blum, a one-time investment banker turned political activist who had organized a series of lawsuits against racial gerrymandering across the country. One of those cases, Bush v. Vera, challenged the use of race in creating the Houston congressional district where Blum lost to an African-American incumbent. Blum won at the Supreme Court. Blum had expanded his legal interests to other race-related cases and wanted to challenge a Houston school district’s racial preferences for its gifted and talented program. He found Coleman to file suit. Just days before the case was set for trial, the school district dropped its race-based policy, ending the suit. In 1999, Coleman joined then-Texas Attorney General John Cornyn (now a U.S. senator) as solicitor general, where he unsuccessfully — and somewhat ironically — defended the state’s affirmative-action policy at the University of Texas before the 5th Circuit. In 2001, Coleman turned back to private practice at Weil, Gotshal in Austin, where he developed a reputation as an up-and-coming Supreme Court lawyer. But he was no stranger to Washington, either. Cornyn, who was elected to the Senate in 2002, called Coleman to testify in 2004 about potential legal ramifications of the Federal Marriage Amendment. So it was no surprise that when the Senate Judiciary Committee, of which Cornyn is a member, began debating the Voting Rights Act last spring, Coleman was called in to testify once again. His point was simple: if pre-clearance remained intact, it would face a constitutional test. “I believe that it is unnecessary, unfair, and that it would probably be unconstitutional,” he testified in May. Though some conservative Republicans voiced opposition to pre-clearance, they were in the minority. Other proposed changes to the renewed Voting Rights Act gave conservatives like Coleman another reason to oppose its passage. New language essentially rewrote portions of the law that the Supreme Court in two cases had recently found to be unconstitutional. When Coleman returned to Texas, he asked Zimmerman if the district would be willing to challenge the constitutionality of pre-clearance. He explained how counties and states can ask the Justice Department to drop them from the list of pre-clearance areas if they can prove a significant period without discrimination. Few counties had actually done so and the Texas utility district cannot. Despite the fact that in the district’s nearly 20-year history it had easily won pre-clearance all eight times it asked for it, the district was restricted from applying for an exemption because it did not register its own voters, relying instead on the countywide voter lists. Technically, the case would ask for a simple exemption from federal oversight, but because it’s unlikely the case would succeed, Coleman told them, they needed to make a constitutional claim. In Coleman’s mind, the district’s lack of options made the case a winner. It couldn’t get out from under government oversight, even if it could prove that it no longer discriminated. Zimmerman was interested. After all, the one-time state-representative hopeful was no fan of big government and had run two local anti-tax campaigns. He brought the idea to the board. At first, the community was reluctant. “A number of people on the board were concerned,” says Ferguson, the board president. “This community doesn’t want to be tainted as against voter rights or discriminating in any way.” But on June 14, Coleman spoke to the board, which then unanimously agreed to sue the Justice Department. A little more than a month later, Congress voted in favor of reauthorizing the Voting Rights Act. LESS DISCRIMINATION? To make its case, the district is relying on a 1997 Supreme Court ruling in a dispute that originated less than 100 miles southwest of Austin. In City of Boerne v. Flores, the Court struck down the Religious Freedom Restoration Act of 1993, saying Congress went beyond its authority in granting religious groups an exception to local laws. The Flores ruling has been successfully used in other cases at the high court by conservatives challenging federal laws on disability rights and violence against women. Coleman hopes to extend that jurisprudence to race in the voting context. Certainly, fewer jurisdictions discriminate, he says, pointing to Justice Department figures. Between 1968 and 2004, the Justice Department rejected only 1,116 proposed changes to local voting rules nationwide — less than 1 percent of the total proposals. What’s more, Coleman says that since 1982, there have been more violations of the Voting Rights Act in jurisdictions without federal oversight than in those with oversight He points to a 2006 University of Michigan study that found that, of the 211 successful voting-rights lawsuits filed since 1982, 53.5 percent were in areas outside federal oversight. But civil-rights organizations say pre-clearance is still a central part of making the law function, especially as a deterrent. “Every time I represent a state or local government, when they are getting ready to make voting change, the first question is, �How will this affect minorities?’ ” says J. Gerald Hebert, a former Justice Department lawyer representing Travis County, which includes Austin, in the suit. “ That’s a good thing.” He points to a study last year by civil-rights groups, which found that Texas jurisdictions scrapped voting changes in 54 cases after officials realized the alterations would fail federal scrutiny. And they cite one instance in which a federal court found that between 1976 and 2002, South Dakota had put 600 laws on the books but submitted only 10 percent of them for pre-clearance. And those districts under federal authority can request a bailout. Hebert says that since 1982, 13 counties — all in Virginia — have done so successfully. Hebert should know — he represented them. The Texas case is expected to be heard this summer by a special three-judge panel from the district and appellate courts, which is part of the required process for any jurisdiction applying for an exemption. Meanwhile, Blum has been meeting with other local government officials who are interested in filing similar suits and trying to figure out “what it is we need to do to win this case,” he says.


Emma Schwartz can be contacted at [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.