Vote law appeal likely by early Fall
on Jun 8, 2008 at 9:04 pm
The highly visible challenge to Congress’ renewal of the law that requires nine states and parts of seven others to get Washington clearance before they change election laws probably will not develop fast enough to have an impact in this year’s election campaign. Any of those governments that seek to alter election procedures between now and Nov. 4, election day, will still have to seek permission.
Lawyers for the local Texas government unit who are pursuing the challenge to the Voting Right Act’s renewal do not plan to try to block a May 30 decision by a three-judge District Court upholding the law’s extension until 2032.
Given court schedules, the formal notice that the case is going to be appealed to the Supreme Court is not due until July 29. Once such a notice of appeal is filed, attorneys have another 60 days — unless they ask for more — to file the actual appeal in the Supreme Court. That might indicate the appeal would arrive by mid- to late-September.  (Lawyers involved say that, if they do go through with an appeal, they would not seek more than 60 days to go forward with their case before the Justices. While an appeal is widely considered to be a certainty, the lawyers have indicated they are still considering whether to do so.)
The lawsuit in Northwest Austin Municipal Utility District Number One v. Mukasey is the case that opponents of any continuation of the voting change pre-clearance requirement have been waiting to see unfold for at least the past decade. Since the Supreme Court in 1997, in City of Boerne v. Flores, sharply restricted Congress’ power to write new laws on civil rights under the Fourteenth Amendment, those opponents have thought the Voting Rights Act’s key Section 5 (the pre-clearance provision) was vulnerable to constitutional attack. Congress relied, in part, on the Fourteenth Amendment in extending Section 5 for 25 years.
For example, in a new book, “Deconstructing the Republic,” Anthony A. Peacock, a political science professor at Utah State University, writes that this provision is “ripe for a City of Boerne challenge.” The only basis for extending the law beyond its earlier scheduled expiration date of August 2007, Peacock added, “is if it could have been established that blacks were still systematically excluded from the political process in the South in some way similar to the way they were in the mid-1960s. The evidence, however, shows overwhelmingly that this is not the case.” (The Section 5 limit on election law changes in covered governments dates originally from 1965.)
Now that the Northwest Austin district’s case has mounted that anticipated challenge, the Supreme Court may well have to decide which of two constitutional standards to apply in judging the validity of the Section 5 renewal. One standard, clearly the easiest to meet, is whether Congress had any rational basis for the extension.
But that is not the standard that the Texas governmental unit, and other opponents of the extension in general, have wanted to apply. The much more rigorous standard they prefer, spelled out in the City of Boerne decision 11 years ago, requires Congress to prove that a civil rights law must be “proportional” and “congruent” — that is, the remedy for the problem, here discrimination in voting based on race, must stay close to the nature of the problem sought to be remedied.
The more lenient standard — the rationality test — dates from a series of Supreme Court decisions, beginning in 1966, that have upheld the passage of the Voting Rights Act of 1965 and several renewals of it. In more liberal academic circles, the Court’s ruling in the City of Boerne case and sequels to it have been viewed as undercutting the rationality test. Yale law professor Own Fiss, for example, wrote last year that the tougher Boerne test appeared to have “emptied…of any significance” the earlier test, originating in two 1966 decisions, South Carolina v. Katzenbach and Katzenback v. Morgan.
The three-judge District Court, in its rulng near the end of last month upholding Section 5’s renewal, directly confronted this choice. It concluded that the rationality test still controls, when Congress has acted to deal with racial discrimination in voting under the Fifteenth Amendment’s guarantee of race equality at the ballot box. Applying that test, and citing what it called a massive amount of evidence that Congress gathered showing that race bias in voting persists today, the District Court upheld the extension.
But, the District Court went further. It applied the City of Boerne test as an alternative basis for its ruling, and found that the Section 5 renewal still passed constitutional muster. Its reasoning, both on the rationality test and on the Boerne standard, relied in considerable part upon past statements by the Supreme Court suggesting that it regarded race bias in voting as something different from the federal laws it had struck down under the Boerne approach.
 (Note to readers: This blog carried a lengthy post on the District Court ruling on May 30; it can be read here. The post provides a link to the full 136-page opinion.)
