by Tim Storey
If you are a legislator in a state where all or part of the state is covered by section 5 of the federal Voting Rights Act, the title of this post needs no explanation. For everyone else, section 5 is a provision in the 1965 Voting Rights Act that requires 16 states to gain approval from the federal government (either the U.S. Department of Justice or the federal district court in Washington, D.C.) any time the state passes a law that deals with voters or elections. That includes any redistricting plan. So when a legislature passes, and a governor signs, a law related to elections in a state covered by section 5, it cannot take effect until the federal government approves it--a process known as pre-clearance. All or part of 16 states are covered by section 5. It was an extraordinary remedy written into federal law to address a long history of insidious discrimination against minority voters.
In 2007, a large bipartisan majority of Congress reauthorized section 5 of the Voting Rights Act. Shortly after the reauthorization, the Northwest Austin (Texas) Municipal Utility District Number One (NAMUDNO) filed a direct challenge to the continued enforcement of section 5 before a three judge panel of the federal district court in Washington, D.C.. The DC court heard the case last October and a decision is expected any time.
Most legal scholars and observers believe that regardless of the district court decision the NAMUDNO case will be appealed directly to the U.S. Supreme Court and lead to a high court decision on the constitutionality of section 5. California Institute of Technology history professor J. Morgan Kousser has authored a lengthy law review article outlining the history of section 5 and discussing the NAMUDNO case. Legislators and staff in section 5 states as well as others interested in the convergence of redistricting and the Voting Rights Act may want to read Kousser's article in the March 2008 Texas Law Review. The article offers a perspective for understanding this complex area of law that could be headed for serious upheaval.
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