Feds retain local election 'tool'

By LARRY PARSONS

June 23, 2009

A U.S. Supreme Court decision Monday means Monterey County will continue to have federal authorities looking over its shoulder when it comes to making any changes in local election procedures.

In a highly anticipated decision involving a small Texas utility district , the high court avoided major questions raised about one of the federal government's most powerful tools to prevent discriminatory voting changes.

Under the federal Voting Rights Act, which Congress first passed in 1964 in the midst of the civil rights era, Monterey County, three other California counties and all or parts of several Southern states must obtain U.S. Justice Department "pre-clearance" to change the way their elections are conducted.

Over the years, that has forced Monterey County to ask federal authorities to weigh in on everything from redrawing county supervisor districts to the physical move of the county elections department from downtown Salinas to South Salinas.

Assistant County Counsel Leroy Blankenship said the decision means it will be business as usual for county election officials, who routinely factor in the pre-clearance requirement on election-related issues.

"It doesn't mean anything for the county," Blankenship said. "The decision didn't reach the constitutional issue."

Much of the county's pre-clearance work is fairly esoteric and behind the scenes, he said.

But sometimes, the issue comes to the fore in conjunction with other election matters. Recently, the county sought and received prior approval from the Justice Department to allow the incorporation proposal for the Town of Carmel Valley to go forward.

County supervisors today are expected to set a Nov. 3 election on Carmel Valley incorporation.

'Difficult' question

The pre-clearance requirement, which was extended along with the rest of the Voting Rights Act for 25 more years in 2006, has been questioned by critics who say it has outlived its usefulness in combatting discrimination.

Still, the court did not, on Monday, decide the question in what Justice Ruth Bader Ginsburg had recently described as "perhaps the most important case of the term."

The court said the Northwest Austin Municipal Utility District No. 1 in Austin, Texas, could apply to opt out of the advance approval requirement.

But Chief Justice John Roberts said the justices decided not to determine whether dramatic civil rights gains mean that the advance approval requirements are no long needed.

That larger issue, Roberts said, "is a difficult constitutional question we do not answer today."

Justice Clarence Thomas was alone among his colleagues in saying he would have ruled the pre-clearance requirement, known as Section 5 , is unconstitutional.

"The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains," Thomas said.

Roberts himself noted that blacks and whites now register and vote in similar numbers and that "blatantly discriminatory evasions of federal decrees are rare."

Backed by a conservative group, the Austin utility district challenged the pre-clearance requirement.

Based on the tone of questions when the case was argued in April, many election-law and civil rights experts predicted the Roberts-led court would strike the measure down.

The court, however, limited its ruling to part of the law that allows a state or local government to seek to be free of the pre-clearance requirement.

Because of extremely low minority resident participation in elections in the 1960s, Monterey County has been under the pre-clearance requirement since 1968. Three other California agricultural counties — Yuba, Kings and Merced — have the requirement.

Blankenship said it would take action by the Board of Supervisors to seek to opt out of the requirement. And given the sensitivity in county political circles over the issue of minority voting rights, it's unlikely that will happen.

The county went on record in support of the 2006 extension of the Voting Rights Act. And civil rights groups have been vocal against any move by the county to get out from under the law's pre-clearance requirement, Blankenship said.

"We have never sought to bail out," he said.

Still valuable

County Supervisor Fernando Armenta, who early in his political career was involved in Voting Rights Act cases over district -based council elections in Salinas and redrawing county supervisor districts , said he thinks the pre-clearance requirement is still valuable.

"There are still folks, I believe, who will overlook sensitive matters that can disenfranchise voters with even a small decision, such as changing a voting precinct," he said.

And with next year's federal census setting the stage for redrawing scores of political district boundaries because of population shifts, the Voting Rights Act protections are crucial, he said.

"It gives people from a diverse population an equal and fair chance at getting elected," Armenta said. "The fact that we have an African-American president doesn't mean we are going to maintain all those protections. I think it's well-needed.