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High Court to Weigh Relevance Of Voting Law in Obama Era

By Robert Barnes
Washington Post Staff Writer
Wednesday, April 1, 2009

AUSTIN -- America's next great battle over civil rights could hardly have a less controversial flash point: the benign decision to move the neighborhood polling place from Jack Stueber's garage to the local

elementary school.

But because Stueber's garage is in Texas, and because Texas once systematically discriminated against its black and Latino citizens, and because Congress wants to make sure that it never does again, elections in the handsome neighborhood called Canyon Creek are a federal issue.

The Supreme Court will consider this month whether the neighborhood's tiny utility board should continue to be among the states and local governments that bear the Voting Rights Act's heaviest burden -- pre-clearance by federal authorities for even the smallest changes in election laws and procedures -- and whether Congress exceeded its authority in 2006 by extending the restrictions for 25 years.

Each time the court has reviewed the law since it was first passed 44 years ago, it has agreed with Congress that the restrictions are warranted. But this time around, a question hangs over the case that is not found in law books:

Is a law conceived in the time of Jim Crow still relevant in the age of Barack Obama?

This has become a theme of the conservative activists who are challenging the law.

President Obama's election "stands as a remarkable testament to the tremendous progress this country has made in terms of racial equality and voting rights," the Pacific Legal Foundation and others said in a brief filed with the court.

To John Payton, president of the NAACP Legal Defense and Educational Fund, it is a nonsensical argument.

"If you believe either Hillary Clinton or Barack Obama would have beaten John McCain, one way or the other I guess we would have abolished gender discrimination or ended racial discrimination," Payton said. "If only there had been a black woman, I guess we could have gotten rid of both."

Gregory S. Coleman, the soft-spoken Austin lawyer and activist who is the lead attorney in Northwest Austin Municipal Utility District No. 1 v. Holder, said he is not arguing that discrimination has been eliminated, only that government officials in one part of the country should not be presumed to discriminate, while officials in another are not.

"Nothing disappoints me more than to pick up media accounts about our case and to read that we're trying to do away with the Voting Rights Act," Coleman said in a recent interview in his downtown Austin office. "That's not what this case is about. This case is about making sure that the Voting Rights Act stands for the broad principles that we all have to treat each other as individuals."

The case has pitted civil rights groups that say the act's Section 5 restrictions have been the single most important factor in the advance of minority electoral power against conservative activists who say they transfer a "scarlet letter" of distrust to generations of people who have never discriminated.

The polarized views about America's current racial landscape are directed at a court that is itself splintered over questions of race and government's responsibility.

In a decision last month that reduced the protections of another section of the Voting Rights Act, Justice Anthony M. Kennedy's plurality opinion reflected the divide.

"Some commentators suggest that racially polarized voting is waning -- as evidenced by, for example, the election of minority candidates where a majority of voters are white," Kennedy wrote. ". . . Still, racial discrimination and racially polarized voting are not ancient history."

At the same time, Kennedy warned that if the act were used to "entrench racial differences," that could defeat the purpose of a "statute meant to hasten the waning of racism in American politics."

The Voting Rights Act was enacted at a time when literacy tests, poll taxes and other schemes were routinely used to frustrate the constitutional guarantees of equal protection and voting rights for all. Its Section 5 "pre-clearance" requirements, which compel the Justice Department or a court to sign off on any changes to voting procedures, were intended to last five years.

Instead, the law was expanded to include "language minorities," and its duration was extended four times, most recently in 2006 by overwhelming congressional majorities. It covers all of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, and parts of California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota.

Coleman, a former Texas solicitor general who testified at the time against reauthorization, said Congress avoided the question of where discrimination exists today and simply reimposed the restrictions on the same governments found guilty in the 1960s and '70s.

"To base the conclusion that Section 5 is still needed and where it is needed based on 40-year-old presidential election returns is something that should at least give one pause," he said.

Payton said the congressional record is replete with examples of intentional discrimination in those jurisdictions, as well as a multitude of planned actions that were thwarted because the Justice Department was able to stop them.

And Obama's victory showed that racial polarization is more extreme in the states listed in the act than elsewhere. Columbia Law School professor Nathaniel Persily's research showed that in some of the states, Obama "did worse among white voters than the Democratic nominee four years earlier . . . despite a nationwide Democratic swing."

Coleman, a former clerk to Justice Clarence Thomas, is a passionate advocate on the issue of race. He is co-counsel on another case before the court this month, one involving white firefighters in New Haven, Conn., who say the city's efforts to increase diversity discriminated against them.

Coleman had been the Texas utility district's lawyer on a tax issue, and he told the board that with help from the Project on Fair Representation, he would represent it for no cost in contesting its inclusion under Section 5.

Board President Bill Ferguson acknowledges that the Justice Department has never denied any election-change request it has made -- the last was in 2004 -- and that the annualized cost to the district of complying is only $223.

But he was surprised to learn that the federal government had to approve his utility board's election in the first place -- there has never been an allegation of discrimination in the neighborhood, whose combined black and Latino population is about 7 percent.

"It didn't seem right that we were somehow different from the rest of the country," he said.

There is not much of an effort by other states and jurisdictions to have Section 5 declared unconstitutional.

Travis County, where Austin is located, opposed the utility board's effort, saying in a brief that the provision is "an invaluable tool the county uses -- still uses -- every election cycle to help tamp down or eliminate the insidious influence of racial discrimination."

The state of Texas has taken no position.

A three-judge panel in Washington ruled unanimously that the utility district did not meet the law's definition of the kinds of jurisdictions that could "bail out" from the provision by showing they had not discriminated. And it said Congress was operating within its authority to reauthorize the restrictions.

Ferguson acknowledges that the issue has become somewhat controversial in the neighborhood. Chris Bowers won a seat on the utility board because he opposes the lawsuit. "It was a favor to Coleman, and I don't see any benefit to the district," Bowers said.

"Ideologically, I think the Voting Rights Act is a good thing, and I would err on the side of giving Congress the power to enforce it."

He and Ferguson agree that most residents don't care much about the issue, and those who do are about equally divided.

Ferguson and three others on the board voted to keep the lawsuit going, although he worries that it could be misinterpreted.

"We don't want to be seen like we're racist or against voting rights or anything," he said.

And whether or not the suit is successful, Ferguson said, the utility district may not be subject to the provisions of the Voting Rights Act much longer.

If all goes according to plan, he said, the board is going to pay off the bonds that paid for the sewers that laid the foundation for Canyon Creek, fix up the neighborhood park and turn it over to the city of Austin, and go out of business.

Research editor Lucy Shackelford contributed to this report.

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