IMAGE:  Voting rights court arguments
Art Lien/nbc News  /  Art Lien/NBC News
Chris Ward, a lawyer for the plaintiff Northeast Austin Municipal Utility District #1, argues, Monday, before Circuit Judge Tatel and District Judges Friedman and Sullivan.
By Producer
NBC News
updated 9/17/2007 2:37:11 PM ET 2007-09-17T18:37:11

There is a new battleground over the voting rights of minorities in the U.S. and it happens to be located in a small water district in Austin, Texas.

The Texas district is challenging a key provision of the 1965 Voting Rights Act requiring jurisdictions with a history of discrimination at the polls to seek permission from the Justice Department before making any change  —  no matter how small — in their voting procedures.

An openly skeptical three-judge panel Monday heard arguments in the case of Northwest Austin Municipal Utility District Number One v. Gonzales.

The district claims the provision, known as "preclearance," is unconstitutional and stigmatizes the jurisdictions for which it applies.

Discrimination's 'Scarlet letter'
Gregory S. Coleman, representing the Texas district, said that the issue is "the scarlet letter that these jurisdictions wear."  He argued that there is "no evidence of a widespread pattern" of discrimination that would require adherence to the "preclearance" provision in the Voting Rights Act. Coleman called the provision, "the single most intrusive measure in U.S.Code."

The case is being heard in U.S. District Court by an Appeals Court Judge and two District Judges, and could likely reach the Supreme Court.

The three-judge panel includes, Circuit Judge David S. Tatel and District Judges Paul L. Friedman and Emmet G. Sullivan.

Judge Tatel cited several recent cases in Mississippi and Alabama where discriminatory voting rights practices were clear cut. In Mississippi, Tatel said, an election was canceled four years ago because of fears a black majority would win. And in Alabama, a local mayor refused to help black candidates fill out the proper paper work to run for office.

Judge Sullivan, an African American, asked if Coleman's client felt that there is "no longer discrimination in our society?"

Coleman said in rebuttal, "We have only talked about a handful of examples. That does not suggest that state and local governments cannot be trusted to act in compliance with the voting rights act."

More sophisticated face of discrimination
In a court filing the Texas utility said that for nearly a year, "The U.S. Department of Justice and dozens upon dozens of lawyers working with numerous major national advocacy groups have scoured the records of Northwest Austin Municipal Utility District No. 1 for any sign of impropriety in the conduct of its elections during the past decade, all without the faintest hint of success."

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The utility district filed its suit about a week after Congress reauthorized the Voting Rights Act in 2006 and days after President Bush signed it into law.

Judge Sullivan said that a new more sophisticated face of discrimination exists in the country. He said, "it hurts, its painful" that is why Congress extended the "preclearance" provision another 25 years.

Civil rights groups say overturning the "preclearance" provision would strip minorities of key protections at the ballot box.

Debo Adegbile representing the NAACP's legal defense fund said in Texas, "finding a way to cut off voters at the pass continues."

In an amicus brief, the Brennen Center writes, "The Fifteenth Amendment is designed 'to reaffirm the equality of races at the most basic level of the democratic process, the exercise of the voting franchise.' Congress has sweeping powers to enforce this bedrock guarantee."  The center adds, that Congress determined that the Voting Rights Act's preclearance requirements "prevent discriminatory voting measures from going into effect and deter state and local governments from attempting to adopt discriminatory measures in the first place." The key provision that the Texas district wants to overturn, they say,  "provides a crucial tool in Congress's effort to eradicate race discrimination in elections."

If the utility district prevails, it would amount to the biggest change in voting rights law in more than 40 years.

The preclearance provision affects all or parts of 16 states, mostly in the South and could have an effect on the 2008 presidential elections.

Joel Seidman is an NBC producer based in Washington.

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