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IN THIS ISSUE

Table of Contents

Letter from the President: Connecting the Dots

Notes on the Right: The Enduring Importance of Strategy

EJS December 8 Fundraiser Features Harriet Tubman Jazz Oratorio

Vote Yes on 89: 'Clean Money' Initiative

First California, Now Michigan: Putting Race up for a Vote

Supreme Court to Revisit Brown v. Board in School Cases

EJS, CTA Look at Unconscious Bias in Schools

U.N. Committee Criticizes Racism in U.S.

New Voting Rights Act Under Attack

A First Look at the Roberts Court

Latina/o Law Student Symposium

Foundations Support EJS Efforts to Balance Racial Justice Debate

Farewell from our Irmas Fellow

Staff News and Notes

Newsletter Editors:
Elaine Elinson
Miguel Gavaldón

Email Feedback

New Voting Rights Act Already Under Attack

By Melyssa Mendoza

On July 27, President Bush signed the Voting Rights Act (VRA) Reauthorization and Amendments Act of 2006 into law, extending the VRA for another 25 years.  The 15^th Amendment of the U.S. Constitution ensures the rights of all citizens, regardless of race, to vote; however, this was not practiced in reality until the passing of the original VRA in 1965.   The reauthorization of the VRA recognizes that 40 years has not been a sufficient amount of time to eliminate voter discrimination.

Section 5 of the VRA contains a preclearance requirement for certain states and local governmental bodies with a history of voter discrimination.  These jurisdictions must seek approval from the U.S. Department of Justice prior to making changes in their electoral laws or practices. The changes must not be retrogressive, meaning that they may not have either the purpose or the effect of denying or abridging the right to vote on account of race. 

Because Section 5 contains race-based criteria, it is vulnerable to a constitutional challenge. In order for it to survive such a challenge, Section 5 must be able to meet the “strict scrutiny standard,” i.e., the statute must be narrowly tailored to a compelling government interest.

Challenge from Texas

Just eight days after the VRA extension was signed by President Bush, it was challenged by a city utility board in Texas in the case of  Northwest Austin Municipal Utility District Number One v. Gonzales filed in U.S. District Court in Washington, D.C.  The Austin utility district has an elected board, and therefore must ask the Department of Justice for preclearance any time they want to make a change in voting procedures.  The district claims Section 5’s preclearance requirement is burdensome and expensive, and is neither necessary nor constitutionally sound.  It argues that although Texas is one of the states covered under Section 5, the state’s discriminatory voting conditions have been remedied for more than 30 years and that many, if not all, of the racist elected officials are now out of power.   . The complaint asserts that Congress acted outside its authority in passing Section 5 of the VRA by continuing its imposition of outmoded and irrelevant laws which burden the electoral process.

On October 16, U.S. Attorney General Alberto Gonzales filed his response with the three-judge District Court panel.  He asserts that the Court does not have jurisdiction to hear the case.  The response brief also asserts that the government does not believe that the voting conditions that caused Texas to fall under the Section 5 preclearance have been remedied. The government did concede that this District was not created at the time of the VRA, yet the government states this District needs the preclearance requirement because districts of the “general type” existed at the time of the government’s belief that Texas should be a covered jurisdiction under Section 5. The government also maintains that the Supreme Court has already decided that Section 5 is constitutional, including that interpreting the political subunits (of which the District is a part) must go through preclearance.

NAACP LDF Intervenes

Two days after the answer was filed, the NAACP Legal Defense and Educational Fund, Inc. (LDF), announced that it had filed a motion to intervene on behalf of the African-American voters who reside within the District.  The LDF attorneys noted that the African American residents want the District to realize that any changes to the VRA may have a negative impact on them and others the VRA was designed to protect.

LDF also asserts that one need not look too far in the past to find concrete evidence of voter discrimination in Texas. They refer to LULAC v. Perry, or the Texas Redistricting cases, heard just last term by the Supreme Court.  In LULAC, The Court ultimately decided that the VRA is still an effective way of protecting minority voter’s rights in Texas, in which the District resides.

Furthermore, LDF filed the motion to intervene because they are not sure that U.S. Attorney General Alberto Gonzales, has the same interest in protecting minority voters that they do. The motion cites numerous cases to support this notion that governmental agencies are inadequate representatives of private party’s interests for a myriad of reasons including mid-litigation strategy changes and inadequate representation. 

EJS Director of Law & Public Policy Kimberly Thomas Rapp noted, “Given the opposition to the Voting Rights Act by Southern Senators and Congressmen who felt that we no longer needed statutes to protect against racist voting procedures, this case will probably not be the last word on the constitutionality of the law.  That issue will  not be truly resolved until it reaches the Supreme Court,” Thomas Rapp added.

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