The U.S. Supreme Court today granted review in an election case that began in Texas, Northwest Austin Municipal Utility District No. 1 v. Mukasey.
The case challenges the continued constitutionality of Section 5 of the Voting Rights Act of 1965. Section 5 is the provision that requires certain political subdivisions to submit every proposed change in their election regulations to the Department of Justice for a review known as “preclearance.” Texas is a covered jurisdiction; every political subdivision within Texas must submit to the process. Because of the extraordinary nature of this requirement, Congress in 1965 gave this provision only a limited lifespan. Since then, Congress has voted to further extend it a number of times. The most recent extension was in 2006. That extension was for another 25 years, putting off this question for another generation.
One small political subdivision in Texas has chosen to fight the requirement, arguing (in part) that Congress’s extension of this statute exceeded its powers under the Fourteenth Amendment. Congress’s powers under the Fourteenth Amendment are limited, and the Supreme Court has held in other contexts that Congress must assemble a record to justify its use of those special powers.
The district argues that, given the vast social changes over the past 40 years, the record assembled Congress in 2006 was inadequate to extend the strict Section 5 requirement for another generation. (( SCOTUSblog quotes one of the district’s briefs as saying, “The America that has elected Barack Obama as its first African-American president is far different than when Section 5 was first enacted in 1965.” ))
To mount its challenge, the district sued the Attorney General in the District Court for the District of Columbia, which convened a three-judge court to hear the case. After the district lost at trial, it filed a direct appeal with the U.S. Supreme Court. (( Direct appeal is how the Supreme Court reviews decisions of the increasingly rare three-judge district courts. Today, three-judge courts are almost never convened outside of certain election-law cases. ))
Today, the U.S. Supreme Court “noted jurisdiction” and set a briefing schedule for the case. The docket sheet is here.
The district is represented by Greg Coleman, former Texas Solicitor General and now a partner at Yetter, Warden & Coleman.
Background: Election Law Blog by Prof. Rick Hasen