- The Washington Times - Monday, May 4, 2009



George Orwell’s “Animal Farm” introduced the absurd proposition that “all animals are equal, but some animals are more equal than others.” Now comes a small utility district in Texas to challenge a situation in which Congress treats some American states as more equal than others. The utility district, which argued its case before the Supreme Court Wednesday, is right.

In Section 5 of the Voting Rights Act of 1965, Congress required nine mostly Southern states, along with parts of seven others, to ask permission (or “preclearance”) from the Justice Department whenever they make even the slightest change in any election procedure. Even if a covered jurisdiction merely wanted to move its voting booths from a school gym to the same school’s cafeteria, the change would be dependent on approval from some bureaucrat at the Department of Justice.

The department, with other important work to do, often dawdles over this task. Sometimes it has failed to provide formal approval until after the jurisdiction in question has missed the deadline to print its ballots. As Alabama Gov. Bob Riley noted in an amicus brief for Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr., Alabama has sometimes been prohibited from timely implementation even of electoral changes mandated by the federal government itself. The result is what Mr. Riley described as a costly “nightmare” with “taxing and absurd results.”

As Jack Park explains in an Op-Ed column on the facing page, Congress in 2006 renewed this disparate treatment of the covered jurisdictions for the fifth time, through 2031, even though those states have no recent records of discriminatory voting practices.

Justice Anthony Kennedy found the heart of the matter at oral argument when he noted that “the Congress has made a finding that … the sovereignty of Alabama is less than the sovereign dignity of Michigan.” To Deputy Solicitor General Neal Katyal, Mr. Kennedy added: “You have a very substantial burden if you’re going to make that case.”

The preclearance requirements are particularly unfair to Northwest Austin MUD, which was founded as a voting jurisdiction decades after Texas demonstrated any discriminatory practices and which has never had its own practices challenged. It doesn’t make sense to burden the people of Northwest Austin in 2009 for discrimination practiced by Texas lawmakers in 1964.

Another amicus filing - this one joined by Project 21, a group of black conservatives - complained about that misapplication, through 2031, of a remedy for conditions in 1964. “For instance,” they wrote, “Section 5 covers [a few] counties in New Hampshire and Michigan, but not the counties which experienced recent voting problems in Ohio and Florida.” They argue that it’s flatly unconstitutional to discriminate so ham-handedly while trying to atone for ancient sins.

This shot is right on the mark. The Supreme Court should invalidate Section 5 while enforcing to the hilt the rest of the Voting Rights Act. The rest of the act ensures fair voting practices without making the Justice Department treat any states, or their people, as being less equal than others.



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