TONY COX, host:
From NPR News, this is News & Notes. I'm Tony Cox. Voting rights are under the spotlight yet again. The U.S. Supreme Court is reviewing a process known as pre-clearance under the Voting Rights Act. It is a measure designed to protect against discrimination at the polling booth. But a sewer district of 3,500 people in Texas has questioned the fairness of the procedure, saying pre-clearance gives the federal government too much say in state affairs.
To explain more, I am joined now by Khalialah Brown-Dean. She is a professor of political science at Yale University. Professor, welcome to News & Notes.
Professor KHALIALAH BROWN-DEAN (Political Science, Yale University): Thanks for having me, Tony.
COX: This complaint by the Northwest Austin Municipal Utility District Number 1 relates to Section 5 of the Voting Rights Act. It was created in 1965 and its relevance today is at issue now. What does Section 5 do and why is it so important to the Voting Rights Act?
Prof. BROWN-DEAN: Section 5 simply requires certain jurisdictions to gain federal consent before they can make any changes to their election laws or procedures. So the jurisdiction has to prove that the law will not have a discriminatory purpose, but it also cannot have a discriminatory effect. And so this is what's key about Section 5, is that it says, yes, we maybe beyond the strictly racist intent of past laws, but if it discriminates against certain groups that law can still be invalidated.
COX: Now, this act, this key part of the act has been extended several times over the years, and it was last extended in 2006 by the - by Congress. My question is why is it now that it is going to the Supreme Court?
Prof. BROWN-DEAN: Well, I think there are two reasons. First is, quite simply, now that we have elected the country's first African-American president, critics are saying we no longer need Section 5. We no longer need these protections to ensure that voters are not being discriminated against. And while I think it's incredibly premature to make that argument based on one election that is really driving this case.
The second issue at hand is that the players in this game have changed and elevated to higher office. So when John Roberts worked in the Reagan administration, Roberts who's now chief justice of the court, he worked to weaken Section 5. He argued that if black voters cannot prove a discriminatory intent they should not be allowed to file voter discrimination claims. So now that Roberts is chief justice of the Supreme Court that will have an effect. Now that Eric Holder has become attorney general and the Department of Justice is really charged with investigating these claims, that will have an impact on how seriously the case is evaluated, but also some of the potential consequences.
COX: Now, one of the things that's been said about this particular case, and you've made reference to it, is that the issue centers what is in legal circle is known as congruent and proportionality. In other words, whether or not the punishment fits the crime, so to speak, if I can make that analogy. My question, though, is why this particular small sewer district in Texas would be the place where opponents of the extension would choose to fight this?
Prof. BROWN-DEAN: I think that it's a way of getting away from some of the claims that groups that would push for this type of reform or for changing Section 5, are being discriminatory, that they simply do not want certain groups to have the same rights and privileges as others. This is a way of escaping that critique, but it is also a way of local government saying we have to bear the burden of meeting these requirements, whether it's through the distribution of resources to make sure that we're filing the claims with the Department of Justice, having to make special provisions in order to do so. And so they're saying that they should not have to shoulder that burden.
I think it's a more effective argument for a local government to make up or smaller jurisdiction or municipality to make, but it also, again, lets us know about the importance of federalism in deciding to what extent should the federal government have oversight, and making sure that every citizen has access to voting.
COX: Is racial make-up an issue in this particular district?
Prof. BROWN-DEAN: I think racial and ethnic make-up is an important component and it's something that is significant about the VRA and about Section 5. Although it originally was intended to enhance African-American's access to voting, over time it's helped millions of citizens - the Latinos, Asian-Americans, Native Americans - come into the political process and be able to enjoy the same rights and benefits of citizenship as others. And so the make up in that particular jurisdiction is different, but certainly is in line with the spirit of the Voting Rights Act.
COX: Professor Brown-Dean, thank you very much.
Prof. BROWN-DEAN: Thanks for having me.
COX: That was Khalialah Brown-Dean. She is a professor of political science at Yale University. And we continue this conversation now with Chris Ward. He is one of the elite counsel representing Northwest Austin Municipal Utility District Number 1. It launched the proceedings back in 2006. We are also joined by Debo Adegbilie. He is the director of litigation at the NAACP Legal Defense Dund, one of the organizations working to keep the Voting Rights Act in its current form. Mr. Ward, Mr. Adegbilie, welcome.
Mr. CHRIS WARD (Lead Counsel, Northwestern Austin Municipal Utility District Number 1): Hi, Tony.
COX: Mr. Ward, let me begin with you. Let's talk about why your client decided to bring this case at this particular time.
Mr. WARD: Well, you touched on this earlier, Tony. The utility district had no history of voting discrimination. It was formed in the late 1980s, it's a small neighborhood of diverse residents, most of them get along as neighbors do. No one has ever identified a single complaint about the district's election. And the first thing this lawsuit actually asks for is a ruling that this little district doesn't need federal oversight. We're first trying to take advantage of a process called bailout. Now, this is not to be confused with the financial bailouts in the news right now. The Section 5 bailout is supposed to let jurisdictions with a good history, like our district, simply get out of Section 5 coverage.
COX: Now let me ask - let me ask you a question before I bring in Mr. Adegbilie. Whether or not this is partisan in any way, and I ask that because you were described in an article in the New York Times, and I'm quoting here as a, "well-connected Texas Republican lawyer representing what is surely one of the most obscured jurisdictions to be covered by Section 5."
Mr. WARD: Well, I'm not sure how - how connected I am, but I would say this is - this is something that's not really partisan in nature for, you know, one - one reason it's not is that Section 5 has actually been used to distort the redistricting process in some ways. Now, this doesn't affect our utility district as much but in other contexts, and in some ways, Republicans like what Section 5 does to districting.
One example in - after the 2,000 census in Georgia, the Democratic-controlled legislature with the support of a majority of the African-American members of that body wanted to put in place a redistricting plan that part of the objective was partisan, to shore up Democratic support in the legislature. But one of the ways that it did that was to unpack these heavily concentrated African-American majority districts to spread the influence of African-American voters throughout more districts.
COX: Well, let me bring in Mr. Adegbilie to address some of what of - what you are speaking of. First of all, Mr. Adegbilie, in terms of this key issue in terms of Section 5, your support of it is based - your continuing support of it is based on what?
Mr. DEBO ADEGBILIE (Director of Litigation, NAACP Legal Defense Fund): My continuing support of it, and that of the Legal Defense Fund, is based on the extensive record that Congress established when it decided to reauthorize the provision in 2006. There were two key things that Congress found after 10 months of hearings and over 16,000 pages of testimony of various kinds from supporters and opponents.
And the two key findings of Congress were that the country has made a tremendous amount of progress in the area of voting and racial equality in voting, and that lots of that progress was attributable to the existence of the Voting Rights Act. But the second finding was that the progress was incomplete and that if the promises of the constitution are to be taken seriously, we have further to go before minority communities are fully included in the political process.
COX: If there are no instances of voter irregularity in this particular section, are there conditions under which you could see states being allowed to be removed from pre-clearance and is this not an example of one of them, potentially?
Mr. ADEGBILIE: I could definitely foresee circumstances in which states could be remove from pre-clearance, and indeed Congress also believes that there are circumstances under which jurisdictions can be removed from pre-clearance. Congress set the bar for the level at which jurisdictions can make that application and the Municipal Utility District falls below that bar. So, this was a congressional decision about what the most efficient way for the statute to exist is, and little utility districts were not at the level that Congress wanted districts to be applying to escape from coverage under the Voting Rights Act...
COX: What about that? Mr. - well let me ask Mr. Ward that only because our time is running very short. Mr. Ward, what about that?
Mr. WARD: First of all we - we read the statute a little bit differently. We think we are entitled to take advantage of this bailout process but that's - part of the problem is the way bailouts have been interpreted by the Department of Justice. It's like a "Hotel California," that old Eagle's song where you can check out, but you can never leave. So, it's hasn't been allowed to operate to release districts from these condition. Debo also - he talked about the findings in 2006. One very important thing though is the coverage of Section 5. In - as of 2006, is still based on 1972 data or earlier. It goes back to statistics from the 1972 presidential election and says basically these jurisdictions that we're having problems, you know, 35 or more years ago, are still the ones we're going to cover today.
COX: I'm going to have to stop you there only because our time has run out. I know these are arguments that you will be both making before the United States Supreme Court. Chris Ward representing Northwest Austin Municipal Utility District and Debo Adegbilie representing the NAACP Legal Defense Fund. Gentlemen, thank you very much.
Mr. WARD: Thank you, Tony.
Mr. ADEGBILIE: Thank you.
COX: This is NPR News.