The U.S. Supreme Court cracked open the door for Texas political units smaller than counties to escape mandatory federal oversight of elections-related actions.
Since last month's decision in Northwest Austin Municipal Utility District Number One vs. Holder, at least one Texas entity has sought an attorney about bailing out of Section Five of the Voting Rights Act. However, people shouldn't expect an immediate swarm of lawsuits from cities and school districts trying to opt out of the law, says Bennett Sandlin, general counsel of the Texas Municipal League.
"Bailing out is arguably more of a burden than just old-fashioned preclearance is. It's doubtful this is a big revolutionary thing for Texas cities," says Sandlin, whose organization represents 90 percent of the state's municipalities.
The State of Texas' still has to seek permission from the U.S. Department of Justice before enacting redistricting plans or voter photo identification laws or other voting law changes. Section Five targets all or part of 16 states (including Texas) that have a documented history of racial discrimination at the polls.
Before the Supremes' ruling, it was unclear whether political entities that do not register voters have the option to bail out of Section Five, even though they must obtain federal preclearance before doing things like moving polling places or changing terms of office.
The justices' narrow ruling ducked the constitutional challenge to Section Five brought by the MUD, though their opinion contains criticisms of the provision. In a lone dissent, Justice Clarence Thomas said that section is no longer necessary, unfairly singles out certain parts of the country, and should be abolished.
"For Texas, the real implication is that the way the bailout statute was being interpreted, it left all of Texas covered without anybody really being able to bail out at all, which creates the impression that there's been no achievement or advancement in Texas over the last 30 years. And that's just not true," says Greg Coleman, lead counsel for the MUD and a partner in Houston firm Yetter, Warden and Coleman.
He's hopeful the ruling signals a change ahead. "It's a warning to Congress and maybe in fact to the Department of Justice saying, 'We'd like to see if you can make this bailout function work as we have now interpreted the bailout statute,'" Coleman says.
Others say the ruling lends flexibility to the law needed to withstand future challenges.
"The recent decision affirmed Section Five and affirmed that voting subdivisions in covered jurisdictions do continue to have to get preclearance from the federal government," says Lisa Graybill, legal director at the American Civil Liberties Union of Texas. "It extended the opt-out options to even smaller political subdivisions like the MUD."
The Texas ACLU intervened in the MUD case on behalf of an African American individual living in the district, arguing to keep Section Five.
Since the institution of the current bailout process in 1982, only 17 political units in the U.S. (all counties in Virginia) have successfully bailed out. Then again, those are the only entities that have ever sought to bail out from the provision.
Voting rights attorney J. Gerald Hebert was the lawyer for all 17 counties, none of which were exceptional, he says.
"The process isn't very burdensome. Actually, I wrote a brief on behalf of seven of the counties describing how easy it was," Hebert says.
Those seven counties reported the average cost to bail out was less than $5,000. That includes proving the clean records of all the political subunits contained in each county, he says. The cost of bailing out would presumably fluctuate according to the size of the political unit and the number of subunits within it.
Compared to Texas, Virginia has a simpler governmental structure that does not involve as many political subunits, making it much easier for Virginia counties to succeed in opting out, Coleman says.
Since the Supreme Court's ruling, two political subunits (smaller than counties) have approached Hebert about seeking to bail out from Section Five. One — which he wouldn't identify — is in Texas.
Officials and attorneys from several small governmental entities have also broached the topic with Coleman, he says.
Sandlin had been unaware of Hebert's figures; still, he doubts that many municipalities will take advantage of the option to bail out. He says that 900 of Texas' 1,200 cities do not have local districts (and hence do not undertake redistricting), do not change election laws regularly and consequently do not have to apply for federal preclearance very often. (Add one more: This week, a federal judge ruled the City of Irving has to adopt single member districts for council elections because it's current system violates the VRA.)
"Right off the bat, most small cities won't do a bailout or opt out, because they don't ever go to the Department of Justice or do it once a decade," he says.
In 2006, Congress extended the VRA for 25 years, promising to revisit the act in 2016. Since the extension, the Justice Department has expressed objections to three Texas entities: to a Houston-area junior college district in 2006 regarding polling locations, to the State of Texas in 2008 regarding candidate qualifications for freshwater supply districts and to Gonzales County in March 2009 regarding bilingual election procedures. (Additionally, in 2006 the courts rejected portions of the 2003 congressional redistricting plan.)
That means if Texas and its thousands of political subunits maintain perfect voting rights records starting now, the earliest that Texas as a state could escape from Section Five's preclearance requirements is 2019 — two years before it's due to redraw congressional, statehouse and other political maps.
—by a Texas Weekly correspondent
