UPDATE Wednesday morning: The case has now been assigned docket number 08-322.  The government’s response is now due Oct. 10, unless an extension to file is sought and obtained.  The case may be considered early enough for a decision in the current Term.

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Urging the Supreme Court to curb Congress’ powers to enforce the voting rights declared by the Constitution’s Fifteenth Amendment, a public utility district in Texas on Monday filed a sweeping challenge to the constitutionality of the extension of the federal Voting Rights Act’s long-controversial Section 5.  In an appeal that will require five Justices to resolve, even on the issue of accepting review, the district filed Northwest Austin Municipal District Number One v. Mukasey.  (The Jurisdictional Statement is available here.  The three-judge U.S. District Court’s 137-page decision being challenged can be downloaded at this link.  A post last May 30 discussing the decision can be read here. The case in the Supreme Court has not yet been assigned a docket number.)

“The Court should find,” the appeal argued, “that the 2006 enactment of Section 5, which consigns broad swaths of the Nation to apparently perpetual federal receivership based on 40-year-old evidence, fails” the Court’s strict test for judging congressional authority to implement the Reconstruction-era Amendments.  That test is whether a federal law to enforce one of those Amendments is “congruent” with and “proportional” to the problem Congress addressed — a test that the Court adopted for reviewing laws passed under the Fourteenth Amendment.

“The Court should unequivocally establish that the Fifteenth Amendment’s enforcement clause no more gives Congress the power as against the States to redefine substantive constitutional rights than does the Fourteenth Amendment,” the district contended.

Section 5, the provision that requires a number of states and local governmental units to get clearance in Washington before they may carry out any changes in voting or election procedures, was first enacted as part of the 1965 Voting Rights Act.  Repeatedly extended since then, Section 5 was given an additional 25-year extension in 2006, with that period actually to end in 2032.

Under the law, any challenges must be heard by a three-judge District Court, with any appeals directly to the Supreme Court, bypassing a Circuit Court.  Because the case involves a direct appeal to the Supreme Court, it will take five votes to decide it, including the initial decision of whether to accept jurisdiction.  This is not the kind of case that can be denied review simply because it lacks four Justices’ votes to hear it, as with a certiorari petition.

The new appeal by the Northwest Austin utility unit offered the Court a chance to avoid addressing the constitutionality of the Section 5 extension.  It urged the Court to rule that, as a local utility district, it should be allowed to take advantage of a “bailout” provision in the law that permits a covered governmental entity to gain an exemption from the pre-clearance procedure.  The District Court, however, ruled that the Austin unit is not eligible for a ballout.

If the Supreme Court were to apply the bailout provision to the Austin body, that would head off a constitutional test of the extension itself.

The District Clourt treated the case as primarily a test under the Fifteenth Amendment.  It upheld the law under both a more relaxed standard — the rational basis test — and under the stricter congruence-and-proportionality test.

The new appeal argued that the Court should establish a “consistent standard for evaluating congressional attempts to enforce the Reconstruction Amendments through prophylactic remedies that encompass constitutionally benign activity by the States and their subdivisions.”

The standard it recommends — congruence and proportionality — should lead the Court to nullify the Section 5 extension, the appeal contended.  “Congress reenacted an unparalleled federal veto over law- and policymaking by certain States and localities without any meaningful evaluation of whether the circumstances originally used to justify he law continue to exist and without any reconsideration of the geographic areas of the country in which it might constitutionally be reimposed.”

Section 5, it asserted, is “the most federally invasive law in existence, a provision recently reimposed on certain parts of the country premised only on an unjustified presumption that those state and local governments are systematically incapable of fulfilling their constitutional and statutory obligation to respect the voting rights of all.”

Congress, it added, “used a formula first instituted in 1965 and that has not been updated since 1975.”

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