The U.S. Supreme Court recently released its ruling in Northwest Austin Municipal Util. Dist. No. One v. Holder. The case deals with the “preclearance” requirement in Section 5 of the Voting Rights Act of 1965 (the “Act”). Section 5 prohibits “covered jurisdictions” from making any changes to voting procedures without first obtaining approval, known as preclearance, from the U.S. Department of Justice. “Covered jurisdictions” are states and political subdivisions that have a history of racial discrimination in voting. Texas and Texas cities are covered jurisdictions. The preclearance provisions require that any change in a voting procedure must avoid the effect of denying or abridging the right of an individual to vote because of race or color. The Northwest Austin Municipal Utility District (MUD) asked the Court to declare the Act unconstitutional, alleging that there is little evidence of continued discrimination in voting practices.

The Court concluded that the Act is constitutional and still necessary. However, it also authorized the MUD to seek an exemption from the Act, known as a “bailout,” if it has no recent evidence of discrimination. States and counties have long been able to seek a “bailout” from the preclearance requirements of Section 5 (although only 17 have done so since 1965), but cities have not been permitted to do so.

The bailout process involves seeking a declaratory judgment from a three-judge district court in Washington, D.C. and a showing that the political subdivision meets four very specific criteria with respect to voting rights violations and constructive efforts to eliminate intimidation and harassment of voters. Because the process can be both lengthy and costly, a city should seriously consider whether it is more beneficial – both financially and politically – to comply with the existing preclearance requirements. In any case, city officials should seek advice from local legal counsel on the requirements of the Act.

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Texas Municipal League.

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