- The Washington Times - Tuesday, September 19, 2006

A lawsuit filed by a Texas utility board seeking a “bailout” from the federal Voting Rights Act has raised questions about the fairness of the act in small jurisdictions, and a Supreme Court battle over its constitutionality may ensue.

The Northwest Austin Municipal Utility District No. 1 Board was formed to oversee construction and maintenance of water and sewer services, operate a local park and provide other services by establishing taxes. That made it a government entity in Texas and therefore subject to Section 5 pre-clearance statutes under the Voting Rights Act. Currently, any change to the district — no matter how minor — must first be cleared by the Justice Department through a process requiring a constitutional lawyer and costing thousands of dollars.

Board members were hoping that Congress would pass an amendment requiring the Justice Department to notify Section 5 jurisdictions eligible for a bailout provision and pre-approve such areas, but the amendment failed. The group said it had no choice but to seek a bailout via a lawsuit.

“These local issues ought to be decided at the local level,” said Greg Coleman, attorney for the 20-year-old utility district who filed the brief. “No one is trying to undermine any issue of the Voting Rights Act.”

The utility district has made two changes to its voting habits in the past four years, and both received pre-clearance, Mr. Coleman said. The most recent change was the relocation of its polling site from the personal garage of one of the board members to a local elementary school “across the street.”

The Voting Rights Act has a bailout provision that grants any jurisdiction an avenue to free itself if it has obeyed all of the statutes and has not been sued or had a judgment for violations for 10 years.

Edward Blum, a voting rights scholar with the Project on Fair Representation, said these types of issues relating to small jurisdictions are commonplace and exactly the type of overbearing use of Section 5 that he opposes.

“Some legal experts would tell you that such jurisdictions like the Austin municipal [utility district] are eligible for a bailout, and others would say they are not,” Mr. Blum said.

Mr. Blum, who testified before the House Judiciary subcommittee on the Constitution in a hearing last year, said politics, not the law, often rules in such cases, but particularly in this one because the jurisdiction was created more than 10 years after Texas qualified for pre-clearance.

“Most of the people involved were either not born, were children or not living in the state when this statute was passed,” he said.

The Justice Department declined to comment on the case.

Rep. Robert C. Scott, Virginia Democrat and a member of the Constitution subcommittee said, “Southern jurisdictions like Texas came under pre-clearance the old fashioned way — they earned it.”

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