(July 14, 2009) The U.S. Supreme Court recently declined to consider the constitutionality of a section of the Voting Rights Act of 1965 that subjects certain state and local government election law changes to federal preclearance review, but suggested it may do so in the future if Congress does not change the law.
The case involved a small utility district in Texas with an elected board. Because it is located in Texas, which historically discriminated against African Americans in elections, the district is subject to section 5 of the Act, which requires federal approval of any changes in election procedure. The district sought to escape preclearance review through the Act's “bail out” provision, which allows a political subdivision of a state to be released from the preclearance requirements if certain conditions are met. In the alternative, the district sought to have section 5 declared unconstitutional.
While the Court noted the historical accomplishments of the Voting Rights Act, it said that its disparate treatment of states raises constitutional concerns related to federalism. The Court suggested that changes in the conditions that had created the Act no longer warranted the distinctions between how it applied to different states. While signaling a future intent to consider declaring section 5 unconstitutional as currently written, the Court decided the case on statutory grounds, holding that all political subdivisions, including the utility district, may seek relief under the bail out provision. (Northwest Austin Municipal Util. Dist. No. One v. Holder, No. 08-322 (June, 22, 2009), available at http://www.supremecourtus.gov/opinions/08pdf/08-322.pdf.)