Point Austin: MUD in Your Eye

Northwest Austin suburb chal­lenges the Voting Rights Act

Point Austin
According to their website, the folks in Canyon Creek, a tony suburban Austin subdivision just this side of Lakeline Mall, enjoy "the best in not just living – but living well." They've got quiet streets, exemplary public schools, parks and a "huge" pool, and a couple of restricted-access apartment complexes. Prices for the four- and five-bedroom brick and limestone houses, LEGO-ed together on streets with names like "Chestnut Ridge" and "Yorktown Trail," list in the $350s (in town, they'd easily go half a mil). All in all, Canyon Creek's numerous "amenities," including the "well-maintained landscaping, combine with a real sense of community and friendliness to make us special."

So special, I guess, that the Canyon Creek friendliness apparently stops at the edge of Boulder Lane. Under their less romantically named alter ego – the Northwest Austin Muni­ci­pal Utility District No. 1 – the CCers have sued the city of Austin and Travis County for "double taxation," because they didn't like paying for both the MUD infrastructure (fronted by the developer) and city water and wastewater service. They lost the suit (an appeal is pending) but generated sufficient political intimidation (at City Hall and the Lege) to force a reduction in their future water rates. If you don't think that's special, I suggest you and your neighbors try the same gambit.

Now the MUD has taken on bigger game, with much greater stakes. Last year it sued none other than the U.S. Department of Justice on the grounds that compliance with the electoral preclearance provisions of the federal Voting Rights Act is just too burdensome for the poor little MUD and its elected board, responsible for the water and wastewater infrastructure bonding for about 1,300 homes. In September, the case was argued before a U.S. district court in D.C.; whatever the eventual ruling, the case will inevitably proceed to the Supreme Court. Considering the Supremes' very mixed record on voting rights in Texas, it's a toss-up whether the MUD and its advocates will succeed in their ultimate intention: rejecting as unconstitutional the preclearance provisions (aka Section 5) of the Voting Rights Act.

We're All Equals Now

Considering the stakes, it's not surprising that the lawsuit has brought out heavy hitters on both sides of the argument. In addition to the DOJ itself, defending the VRA are the Mexican American Legal Defense and Educational Fund, the NAACP Legal Defense and Educational Fund, the Texas NAACP, LULAC, the ACLU, and a host of other intervenors on behalf of minority voting rights, including Travis County. On the other side, the MUD was in fact recruited to the lawsuit by its attorney Gregory Coleman, formerly the Texas solicitor general (and former clerk to Justice Clarence Thomas), along with Edward Blum of the American Enterprise Insti­tute, who runs its Project on Fair Repre­sentation, a legal defense fund seeking to end what it calls "racial preferences" in voting, education, contracting, and employment.

Blum, a former Houstonian who recently moved to Austin, has long campaigned for what he insists on calling a "color-blind America," arguing that affirmative-action measures are no longer necessary because virulent and systematic racial discrimination is a thing of the past. In 2006, he lobbied hard against the renewal of Section 5, which requires electoral preclearance in 16 states (including Texas). "I got my butt kicked on Cap­it­ol Hill," he told me bluntly; a few days after the VRA (including Section 5) was renewed for another 25 years by the then-Republican Con­gress, the Northwest MUD filed its lawsuit. Blum insists that his effort is nonpartisan and that right-wing Republicans (including Tom DeLay) have become the fiercest defenders of Section 5 because it allows them to "bleach out" GOP districts of minority voters, who are "packed" into majority-minority districts – but the VRA renewal was also supported unanimously by Democrats on the Hill.

More importantly, the major minority rights organizations strongly support Section 5 because they consider it a necessary deterrent against electoral changes calculated to undercut minority voting strength. In the briefs defending the DOJ and Section 5, they point to reams of congressional testimony documenting continuing discriminatory practices, still occurring disproportionately in the South (roughly half the cases associated with only a third of the U.S. population). Chronicle readers will be familiar with the gamesmanship of the long-running GOP re-redistricting scandal; were it not for preclearance, even the blatant racial gerrymandering in South Texas might have gone uncorrected. Nonetheless, it's also worth noting that in the Texas case, as DeLay anticipated, the DOJ's political appointees and the current Supreme Court did their joint and several best to undermine the effectiveness of Section 5.

The Northwest MUD will be the first of many such cases, and Blum knows he has to work fast.

Colorblind to History

Nominally, the MUD seeks "bailout" from Section 5 (unlikely, because Travis Co. is the bailout-eligible jurisdiction). Failing that, the MUD argues that Section 5 is not "congruent and proportional" to the district's responsibility and history, because 1) the cost (perhaps a couple thousand administrative dollars over 20 years) is a burden, 2) in its two decades of existence it has not demonstrably discriminated against minority voters, and 3) preclearance is a "badge of shame" aimed only at certain places (i.e., Texas).

Canyon Creek's attempt to secede from the racial history of Texas is amusingly brazen; the effective translation of its nondiscrimination claim is, "We don't discriminate against blacks and browns; we ain't got none." (Of the suburb's 3,600 or so residents, in what is now a majority-minority city, fewer than 7% are African-American or Latino.) Don Zimmerman, the best-known MUD board member (he ran for the state House in District 50 and is currently campaigning for Ron Paul), pointed out to me that most of Canyon Creek's minority residents (11.6%) are of Asian heritage, "because of all the high tech work out here." In deposition testimony he reiterated for me, he said he had never known or heard of any racial discrimination in Texas, in all of his 46 or so years in the state. "I don't know of any – if there's been some, educate me!"

I have no doubt all the friendly folks in Canyon Creek get along just swimmingly and just want to get the government off their backs (except, of course, should anybody in the subdivision want to paint their house a nonconforming color or change their landscaping – that requires permission of the homeowners association). But their belief, abetted by ideologically blindered right-wing lawyers and foundations, that the law of the land should not apply to them because they're all nice people in a nice place with nothing but the best of intentions amounts to little more than what our president likes to call "the bigotry of low expectations."

I happen to believe that the folks in Canyon Creek are certainly as capable of self-education as the folks, say, in Montopolis, but they just haven't had the same cultural advantages. I suggest they all do a little hard studying on the real history of racial relations in Texas and try to remind themselves every single day that the world – like their responsibilities as citizens – doesn't end at the boundaries of the Northwest Austin Municipal Utility District No. 1.

Last week, I mistakenly reported that defendant Karen Friese attended a hearing in the Moriarty et al vs. PBS&J et al lawsuit. In fact, only the lawyers turned up, and I apologize for the error. Send all corrections, and legal tips, to mking@austinchronicle.com.

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Northwest Austin Municipal Utility District No. 1, Canyon Creek, Don Zimmerman, Edward Blum, Voting Rights Act

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