In 2006, just days after President Bush signed into law the bill reauthorizing core provisions of the Voting Rights Act of 1965, a small water district in Austin, Texas filed a federal lawsuit in Washington, D.C. challenging the preclearance provision known as Section 5 of the Act. Section 5 is widely regarded as the heart of the Voting Rights Act, and the Act is regarded as one of the most effective and important laws ever passed by Congress.
Why is Section 5 important? It serves as our democracy’s discrimination checkpoint and keeps the pathways to the polling booths safe by requiring many of those jurisdictions with some of the most prolonged histories of racial discrimination in voting to submit proposed voting changes for federal approval before they can legally take effect. This approval or preclearance process both detects and deters voting discrimination while shifting the burden of proving discrimination away from the voters.
Due to its history of discrimination, Texas is a jurisdiction covered under Section 5. In its lawsuit, the water district sought to end its responsibility for having changes to its election laws undergo preclearance and challenged the constitutionality of Section 5. The NAACP Legal Defense Fund (LDF) intervened in the lawsuit to defend Section 5 on behalf of the African-American voters whose voting rights were directly impacted by the law. A year later LDF, the United States, and other civil rights interveners successfully defended Section 5 before a federal court. The court rejected the constitutional challenge and the water district’s attempt to exempt itself from preclearance through a bailout provision in the statute.
Of course, the battle did not end there. The lawyer for the water district, who had testified against reauthorization before Congress in 2006, was determined to ask the Supreme Court to do what Congress and the President had refused to – end Section 5’s vital voter protections. The water district sought to have its case heard by the Supreme Court. LDF, along with many other civil rights advocates, responded by submitting a brief to the Supreme Court detailing the extensive record compiled by Congress of pervasive and continuing voting discrimination, which justifies the need for the minority voter protections in states like Texas.
On April 29, 2009 Debo Adegbile, LDF Associate Director-Counsel/Director of Litigation, argued before the Supreme Court in defense of Section 5. The opposing counsel attempted to challenge the provision’s constitutionality by claiming that the progress over the years provided a reason for the Supreme Court to disregard Congress’s judgment regarding the continuing necessity of Section 5. Despite opposing counsel’s argument that the election of the nation’s first African-American president nullified its need, the Court did not invalidate Section 5. Instead, the Court decided that places like the water district could apply to bailout if they could show a clean voting record for 10 years. In its opinion, authored by Chief Justice John Roberts, the Court recognized that "[t]he historic accomplishments of the Voting Rights Act are undeniable."
The Court’s decision ensures that minority voters will continue to have the safeguards provided by the Section 5 preclearance process.
Justice Clarence Thomas was the sole dissenter in the case, and he explained that he would have invalidated Section 5.