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The Voting Rights Act and School Boards

By Mark Walsh — April 29, 2009 3 min read
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The U.S. Supreme Court today took up a major case involving the Voting Rights Act of 1965, with the justices debating whether Congress had the right in 2006 to extend a key section that subjects certain states and counties to greater scrutiny for discrimination in voting procedures.

The case has implications for school districts in any of the states covered by Section 5 of the voting-rights law. Under that section, the states and local governments must get federal approval, or “preclearance,” of any change in voting procedure. For affected school districts, that typically involves changes in district boundaries for school board elections.

The challenge to the Voting Rights Act extension was brought by a small utility district in Texas.

“We are in a different day,” said the district’s lawyer, Gregory S. Coleman, from the mid-1960s, when Congress first adopted the preclearance procedure to combat Southern hostility to the enfranchisement of African-Americans.

His arguments in Northwest Austin Municipal Utility District No. 1 v. Holder (Case No. 08-322) went over well with some of the court’s conservatives, but not its more liberal members, including Justice David H. Souter.

Citing the more than 600 cases in which the U.S. Department of Justice has raised objections to a voting change submitted by a covered jurisdiction over a recent 20-year period, among other evidence of continued racial disparities in voting, Souter said: “Things ... may be better. But to say that they have radically changed to the point that this becomes an unconstitutional Section 5 exercise within Congress’s judgment just seems to me to deny the empirical reality.”

Later, Chief Justice John G. Roberts Jr. questioned Deputy U.S. Solicitor General Neal K. Katyal, who was defending the 25-year extension, about why some states continue to face special procedures while certain other states never covered by Section 5 have troublesome records on participating rates by minority voters.

“Obviously, no one doubts the history here,” the chief justice said. “But at what point does that history ... stop justifying action with respect to some jurisdictions but not with respect to others that show greater disparities?”

And Roberts noted that Congress initially enacted Section 5 for five years, then extended it several times. “At some point it begins to look like the idea is that this is going to go on forever,” he said.

Justice Anthony M. Kennedy, who many believe will tip the balance on this case, expressed concerns that the law’s disparate approach treats the “sovereignty of Georgia” (a state covered by Section 5) as less than “the sovereign dignity of Ohio” (which isn’t covered).

“This is a great disparity in treatment, and the government of the United
States is saying that our states must be treated differently,” Justice Kennedy told Katyal. “And you have a very substantial burden if
you’re going to make that case.”

The election of Barack Obama as the nation’s first African-American president wasn’t mentioned in court, but Justice Antonin Scalia asked another lawyer defending the extension, Debo P. Adegbile of the NAACP Legal Defense and Educational Fund, about racial progress in one covered state.

Virginina, Scalia noted, was the first state to elect a black governor and has an elected black chief justice.

The election of African-Americans to particular high offices “has an important salutory effect and it tells us about the possibilities of our
Constitution,” Adegbile said, “but it doesn’t mean that voters [who] are trying to vote in a school board election in Louisiana are going to have an easy time of it, where racially polarized voting is as extreme as it is and when election officials manipulate the rules of the game to try and disadvantage the minority community.”

A version of this news article first appeared in The School Law Blog.