NAMUNDO v. Holder

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In my thread about Supreme Court candidates, Debra_Law directed my attention to NAMUNDO v. Holler, an interesting case recently argued before the Supreme Court. I thought it deserves a thread of its own.

This case challenges the pre-clearance provision in the Voting Rights Act, most recently renewed in 2006. It requires that parts of the United States, which have a previous history of disenfranchising minorities, obtain federal approval before they can change their election laws.

The facts of the case are that the Northwest Austin Municipal Utility District Number One sought a declaratory judgment exempting it from this requirement, and alternatively argued that the requirement was unconstitutional. The full case name is Northwest Austin Municipal Utility District Number One v. Holler. Oyez has the oral argument here:

http://www.oyez.org/cases/2000-2009/2008/2008_08_322here

At the moment, I'm still collecting information and making up my mind. Can anybody point me to a site with the most interesting briefs?

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@Thomas,

Id go to Victoria's Secret

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@farmerman,

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Thomas:

Here's the link to the opinion from the United States District Court for the District of Columbia:

NAMUNDO v. Mukasey

The District Court concluded, given the extensive history of racial discrimination in covered jurisdictions with respect to voting rights, Congress's decision to extend Section 5 of the Voting Rights Act 1965 for an additional twenty-five years was rational and constitutional.

Section 5 is merely an oversight provision wherein the covered jurisdiction must demonstrate that any proposed changes to voting procedures will not deny or abridge the right to vote on the basis of race.

Here's the Cornell University Law School Bulletin on the case:
http://topics.law.cornell.edu/supct/cert/08-322

There are links to the appellate briefs within the text of the bulletin.

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See also:

SOUTH CAROLINA v. KATZENBACH, 383 U.S. 301 (1966)
http://laws.findlaw.com/us/383/301.html

"Congress, as against the reserved powers of the States, may use any rational means to effectuate the constitutional prohibition of racial voting discrimination."

Based on materials posted on the other thread, one has to wonder if the Katzenbach case is one of those "progressive" Warren Court decisions that Roberts and Alito seek to dismantle.

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No More Mr. Nice Guy
The Supreme Court’s stealth hard-liner.
by Jeffrey Toobin

http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin

Excerpt:

On April 29th, the last day of arguments for the Court’s current term, the Justices heard Northwest Austin Municipal Utility District No. 1 v. Holder, a critical case about the future of the Voting Rights Act. Congress originally passed the law in 1965, and three years ago overwhelmingly passed its latest reauthorization, rejecting arguments that improvements in race relations had rendered the act unnecessary. Specifically, the bill, signed by President George W. Bush in 2006, kept in place Section 5 of the law, which says that certain jurisdictions, largely in the Old South, have to obtain the approval of the Justice Department before making any changes to their electoral rules, from the location of polling places to the boundaries of congressional districts. A small utility district in Texas challenged that part of the law, making the same argument that members of Congress had just discounted"that this process, known as preclearance, amounted to a form of discrimination against the citizens of the New South.

Roberts said little to the lawyer for the plaintiff, but when Neal K. Katyal, the Deputy Solicitor General, took to the lectern to defend the Voting Rights Act, the Chief Justice pounced. “As I understand it, one-twentieth of one per cent of the submissions are not precleared,” Roberts said. “That, to me, suggests that they are sweeping far more broadly than they need to to address the intentional discrimination under the Fifteenth Amendment”"which guarantees the right to vote regardless of race.

“I disagree with that, Mr. Chief Justice,” Katyal said. “I think what it represents is that Section 5 is actually working very well"that it provides a deterrent.” According to Katyal, the fact that the Justice Department cleared almost all electoral changes proved, in effect, that the South had been trained, if not totally reformed.

Roberts removed his glasses and stared down at Katyal. “That’s like the old elephant whistle,” he said. “You know, ‘I have this whistle to keep away the elephants.’ You know, well, that’s silly. ‘Well, there are no elephants, so it must work.’ ”

Roberts was relentless in challenging Katyal: “So your answer is that Congress can impose this disparate treatment forever because of the history in the South?”

“Absolutely not,” Katyal said.

“When can they"when do they have to stop?”

“Congress here said that twenty-five years was the appropriate reauthorization period.”

“Well, they said five years originally, and then another twenty years,” Roberts said, referring to previous reauthorizations of the act. “I mean, at some point it begins to look like the idea is that this is going to go on forever.”

And this, ultimately, was the source of Roberts’s frustration"and not just in this case. In a series of decisions in the past four years, the Chief Justice has expressed the view that the time has now passed when the Court should allow systemic remedies for racial discrimination. The previous week, the Court heard a challenge by a group of white firefighters in New Haven who were denied promotions even though they had scored better than black applicants on a test. Roberts was, if anything, even more belligerent in questioning the lawyer defending the city. “Now, why is this not intentional discrimination?” he asked. “You are going to have to explain that to me again, because there are particular individuals here,” he said. “And they say they didn’t get their jobs because of intentional racial action by the city.” He added, “You maybe don’t care whether it’s Jones or Smith who is not getting the promotion,” he said. “All you care about is who is getting the promotion. All you care about is his race.”

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@Debra Law,

Debra Law, citing South Carolina v. Katzenbach, wrote:

"Congress, as against the reserved powers of the States, may use any rational means to effectuate the constitutional prohibition of racial voting discrimination."

What does that say about the standard of review that courts should apply to voting rights cases? It sounds a lot like the "rational basis" test for reviewing economic regulations. Is it?

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@Debra Law,

In this particular section of the oral argument, Roberts was quite right to be "hostile". Although I prefer to call it "skeptical", "inquisitive", and "tough". A judge has no obligation to buy every argument brought before him, and it doesn't convey hostility if when he doesn't.

And the argument here does seem to merit skepticism. The federal government's pre-clearance of some states but not others, of some parts of some states but not some parts of others, seems indeed harder and harder to defend. And Congress's decade-by-decade extension of its own powers does seem to transform a temporary institution into a permanent one. I can easily see the merits argument fall apart under a standard of review that has real teeth, though I haven't studied the facts beyond listening to the oral arguments.

As suggested in the article to which you linked in the other thread, Kaytal shouldn't have spent that much time arguing the merits of the provision. Instead, he should have argued that under the constitution, Congress's powers under the 14th and 15th amendments are indeed extensive, and that the Katzenbacher was decided correctly in that it required a lenient standard of review.

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@Thomas,

Thomas wrote:

At the moment, I'm still collecting information andhttp://able2know.org/reply/post-3655865/quote/ making up my mind. Can anybody point me to a site with the most interesting briefs?

SCOTUSWiki is a good place to find appellate briefs and related documents for supreme court cases.

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@joefromchicago,

Thanks!

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@Thomas,

Thomas wrote:

In this particular section of the oral argument, Roberts was quite right to be "hostile". Although I prefer to call it "skeptical", "inquisitive", and "tough". A judge has no obligation to buy every argument brought before him, and it doesn't convey hostility if when he doesn't.

And the argument here does seem to merit skepticism. The federal government's pre-clearance of some states but not others, of some parts of some states but not some parts of others, seems indeed harder and harder to defend.

Roberts's "skepticism" reminded me of Justice Bradley in the Civil Rights Cases (1883), where he complained that blacks had been the "special favorites of the law" for long enough. Yes, I suppose it's a shame that local units of government can't routinely discriminate against minorities, and no doubt it's an enormous hassle to get pre-clearance from the justice department, but then no one ever said that abiding by the fourteenth amendment would be easy. Elephant whistle indeed!

Thomas wrote:

And Congress's decade-by-decade extension of its own powers does seem to transform a temporary institution into a permanent one. I can easily see the merits argument fall apart under a standard of review that has real teeth, though I haven't studied the facts beyond listening to the oral arguments.

I think any argument based on the act's "temporary permanency" runs up against the supreme court's decision in Eldred v. Ashcroft, where the court held that a 70-year extension constituted a "limited time" under the copyright clause. Following that reasoning, the 1965 Voting Rights Act still has about 25 years to go.

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@joefromchicago,

joefromchicago wrote:

Yes, I suppose it's a shame that local units of government can't routinely discriminate against minorities, and no doubt it's an enormous hassle to get pre-clearance from the justice department, but then no one ever said that abiding by the fourteenth amendment would be easy. Elephant whistle indeed!

Even if the pre-clearance requirement goes away, there are still laws against discrimination, which the federal government can enforce once discrimination happens. This case is about the pre-clearance requirement.

I think it's quite alright that elephant-whistle arguments meet skepticism. I wish they met more -- particularly the one from conservatives that "there have been no new 9/11s after Bush declared war on terrorism".

joefromchicago wrote:

I think any argument based on the act's "temporary permanency" runs up against the supreme court's decision in Eldred v. Ashcroft, where the court held that a 70-year extension constituted a "limited time" under the copyright clause.

... and which was preposterous, as I think you and I agree. But I take your point.

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@Thomas,

Thomas wrote:

Even if the pre-clearance requirement goes away, there are still laws against discrimination, which the federal government can enforce once discrimination happens. This case is about the pre-clearance requirement.

I think it's quite alright that elephant-whistle arguments meet skepticism. I wish they met more -- particularly the one from conservatives that "there have been no new 9/11s after Bush declared war on terrorism".

It's the old question of whether absence of evidence equals evidence of absence. In any event, if the case is merely about the constitutionality of the pre-clearance provisions of the act, there shouldn't be any problem. That question was resolved in Katzenbach over thirty years ago.

Thomas wrote:

joefromchicago wrote:
I think any argument based on the act's "temporary permanency" runs up against the supreme court's decision in Eldred v. Ashcroft, where the court held that a 70-year extension constituted a "limited time" under the copyright clause.

... and which was preposterous, as I think you and I agree. But I take your point.

Yes, Eldred is a bad opinion, but it's now the law. Only one justice on the court (Justice Thomas) has expressed any willingness to abandon the rule of stare decisis. The other eight, therefore, should take Eldred seriously in this context.

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@Thomas,

Thomas wrote:

Debra Law, citing South Carolina v. Katzenbach, wrote:
"Congress, as against the reserved powers of the States, may use any rational means to effectuate the constitutional prohibition of racial voting discrimination."

What does that say about the standard of review that courts should apply to voting rights cases? It sounds a lot like the "rational basis" test for reviewing economic regulations. Is it?

No sooner would a court strike down one practice as racially discriminatory, then those innovative people in political power who would seek to diminish the political power of minorities would devise a new scheme to accomplish their purposes. Our national history has demonstrated that fighting racial discrimination on a case by case basis was a losing battle. Using its express constitutional authority to enact appropriate legislation to enforce the anti-discrimination provisions of the Civil War Amendments, Congress enacted the Voting Rights Act of 1965.

It is wholly rational for Congress to believe that in the absence of government oversight, that minority voting rights in covered jurisdictions will be insecure. Congress may rationally determine that reverting to the prior ineffective system of fighting violations of the Civil War Amendments on a case by case basis is unwarranted at this time because “the vestiges of discrimination in voting continue to exist.” Congress extended the oversight provision of the Act. Our constitution places the discretion to determine what legislation is appropriate to enforce the anti-discrimination provision in the hands of Congress. Even if five conservative justices on the Supreme Court may disagree with Congress over the appropriateness of extending the oversight provision, those justices must defer to Congress. With respect to the appropriateness of the legislation at issue, the law is clearly established that the Court cannot substitute its judgment for Congress's judgment.

Although Roberts may be of the opinion that government discrimination against minorities based on race doesn't exist anymore (like some prehistoric mammoth that he calls an "elephant"), his opinion does not trump Congress's express constitutional power to enact appropriate legislation to enforce the anti-discriminatory provisions of the our constitution. Congress may choose from among many options that legitimately further the goal of securing minority voting rights against government denials or deprivations. Congress may legitimately extend the oversight provision of the Voting Rights Act.

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@Debra Law,

Debra Law wrote:

Although Roberts may be of the opinion that government discrimination against minorities based on race doesn't exist anymore (like some prehistoric mammoth that he calls an "elephant"), his opinion does not trump Congress's express constitutional power to enact appropriate legislation to enforce the anti-discriminatory provisions of the our constitution.

We'll find out what Roberts's opinion is when he writes it. Meanwhile, he doesn't have to buy every argument a counsel makes before him. Asking these guys tough questions doesn't make him hostile.

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The water district is not a "political subdivision" of a covered jurisdiction. Thus, the water district was ineligible to seek exemption from the law. The political subdivision of which the water district is a member, however, could properly bring a declaratory judgment action.

Any covered jurisdictions or a political subdivision of a covered jurisdiction has the power to end federal government oversight (preclearance) of its voting practices and procedures if the covered jurisdiction or its political subdivision establishes, through a declaratory judgment action, that it has not engaged in any non-trivial violations of the law for a period of ten years. Thus, simply by demonstrating compliance with the law for a reasonable period of time, a "covered jurisdiction" may seek a judicial declaration that it is exempt from the Act's preclearance requirements. Thus, these political entitites that are sobbing crocodile tears because they are subject to "disparate treatment" have it within their own power to eliminate federal oversight simply by complying with the law.

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@Thomas,

Thomas wrote:

Debra Law wrote:
Although Roberts may be of the opinion that government discrimination against minorities based on race doesn't exist anymore (like some prehistoric mammoth that he calls an "elephant"), his opinion does not trump Congress's express constitutional power to enact appropriate legislation to enforce the anti-discriminatory provisions of the our constitution.

We'll find out what Roberts's opinion is when he writes it. Meanwhile, he doesn't have to buy every argument a counsel makes before him. Asking these guys tough questions doesn't make him hostile.

Tough questions?

Roberts: "All you care about is his race."

Sounds like a hostile accusation mired in racial divisiveness, not a legitimate question concerning the enforcement of laws that prohibit discrimination on the basis of race.

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An Assessment of the Bailout Provisions of the Voting Rights Act
http://www.ucdc.edu/faculty/Voting_Rights/Papers/9%20-%20Hebert.pdf

The author, J. Gerald Hebert, "served as legal counsel to all of the jurisdictions that have bailed out since the 1982 amendments were enacted," and also serves "as legal counsel to the two jurisdictions that are presently seeking a bailout."

Quote:

At the outset, I believe the standards for establishing bailout eligibility that currently exist have proven to be both workable and practical. Since Congress amended the Act in 1982, ten jurisdictions have sought and obtained bailout, and at least two bailout requests are pending. As explained below, jurisdictions subjected to the Act’s special remedial provisions, such as the preclearance provisions, have an effective opportunity to bailout today if they can prove nondiscrimination. Moreover, the bailout provisions are tailored in such a way as to require a covered jurisdiction to prove nondiscrimination in voting on the very issues that Congress intended to target when it enacted the special remedial provisions in the first place.

The Act’s special provisions target those jurisdictions with a long history of discrimination. The bailout provisions require those jurisdictions to show that those practices not only have been abandoned, but further that they have no lingering effects. The current bailout provisions, by allowing State
and local governments with a history of discrimination the ability to avoid some of the Act’s more intrusive requirements, insure that the Act remains consistent with sound principles of federalism.

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@Debra Law,

Then it sounds different to you than it does to me. It happens.

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The correct outcome of this case is that the Supreme Court find in favor of the federal government. Not because the government's position is particularly reasonable, but because it doesn't have to be particularly reasonable under a narrow reading of the constitution. Here are what I see as the deciding points:

1) The 14th and 15th amendment contain a grant of power as broad as the one granted by the "necessary and proper" clause -- which the court has always interpreted very broadly -- going back to Chief Justice Marshal's time, and consistent with at least some of the founding fathers.

2) It doesn't matter that Roberts is right when he suggests that the federal government is discriminating against some states for the original sin of having discriminated before 1960, and in favor of others for the original virtue of being located north of the Mason-Dixon line. None of that matters, for two reasons:

a) The equal protection clause only binds the states, but not the federal government. Under a originalist reading of the constitution, the federal government can discriminate as much as it likes to, and doesn't have to be reasonable about it. Sure, the Supreme Court has decreed in Bolling v. Sharpe that the Due Process Clause of the Fifth Amendmnet contains an equal protection component -- but it is no coincident that Bolling depends on some of the shoddiest legal reasoning ever handed down by the court. There is no non-shoddy legal reasoning by which the court could have prohibited the federal government from discriminating.

b) Even if the federal government is somehow obliged to provide equal protection, perhaps through the equal protection component of the Due Process Clause, only persons have a right to equal protection under the law. States don't count as persons under American law.

Debra's source in the earlier thread is right: Under an originalist approach, this case is easy.

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NAMUNDO v. Holder

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