Point Austin: MUD Rising

Canyon Creek voting-rights lawsuit goes to the Supremes

Point Austin
Last week the U.S. Supreme Court agreed to review one Austin-based voting-rights case and rejected another, in a revealing coincidence of the current court's priorities. The justices elected not to hear an appeal by the Texas Democratic Party challenging the use of the eSlate voting machines (by Travis County) because they may not consistently register straight-party votes. However, they did accept the appeal by Northwest Austin Municipal Utility District No. 1, challenging the "preclearance" provisions of the 1965 Voting Rights Act, nominally because the MUD's board considers complying with the VRA both burdensome and insulting, and therefore unconstitutional.

It's arguable that the eSlate problem has been exaggerated – making certain you've marked the right candidates is just not that difficult – but it certainly affects plenty of voters (e.g., 100 counties just in Texas) and could be entirely allayed by just requiring the printing of confirming ballots. By contrast, the "NAMUDNO" lawsuit is the personal hobbyhorse of a handful of board members of a tiny North­west Austin subdivision (better known as Can­yon Creek) whose more ordinary attentions are to water and wastewater rates and keeping the parks mowed. The MUD's lawyers – conservative ideologues working "pro bono" with the helpful underwriting of right-wing foundations – have had their hats handed to them thus far, but just the fact that the John Roberts court has accepted the appeal suggests they'll get a friendlier hearing on high. Roberts himself has worked against the VRA since his days as a junior attorney in the Reagan administration, and he presides over a court reluctant to remedy racial discrimination unless somebody has been personally assaulted with a buggy whip.

I've written about the respectable folks of Canyon Creek before ("Point Austin," Nov. 9, 2007) and was met with histrionic outrage at the suggestion that their 80% white community (most of the rest high tech Asian-Americans) is anything less than "colorblind." Many of the residents were indeed embarrassed at the lawsuit, lobbied the board to withdraw this neighborhood "black eye," and promised a petition campaign against it. I guess that hasn't quite worked out.

But I don't particularly care to beat up again on Canyon Creek, a highly artificial, other-people's-money suburban development being used as a pawn by GOP-partisan foundations, notably the American Enterprise Institute and its Project on Fair Representation run by Austin­ite Edward Blum. Blum has made a political cottage industry – more precisely, vacation-home industry – of opposing any and all forms of affirmative action, on the sublimely naive argument that racial discrimination in the U.S. is largely a thing of the past, and the best way to get beyond it – like drunken behavior at a cocktail party – is to pretend it's no longer happening.

Mud and Straw

The preclearance provisions of the VRA cover primarily Southern and Southwestern U.S. jurisdictions where voting discrimination has been historically persistent, and they simply require that proposed local changes in voting procedures must first be reviewed by the Department of Justice. The review is most often a cursory administrative process, but it has worked well to discourage discriminatory tactics in advance and protects minority voters against everything from intentionally inconvenient polling stations to grandiose racial gerrymandering. The law only partly corrected the worst injustices of the recent Texas congressional re-redistricting – essentially because the Roberts court ruled as narrowly as it could and thereby kept most of the GOP gerrymander in place.

In 2006, Congress extended the VRA for another 25 years ("I got my butt kicked on Capitol Hill," said Blum). The GOP legal machine promptly swung into action, and former Texas Solicitor General Gregory Cole­man (and former clerk to Justice Clarence Thomas) generously put himself and his Aus­tin firm of Yetter, Warden & Coleman at the service of the Northwest MUD – although the political relationship is more accurately the reverse. (In their press release announcing the court's acceptance, Blum and Cole­man couldn't quite locate the MUD, putting it "near" instead of in Austin.) If the Canyon Creek MUD board (led then by obtusely "colorblind" Don Zimmerman) hadn't been willing, Blum, Coleman, et al. would have found another straw plaintiff. Should they fail in this round of litigation, they'll go looking for another small group of historical innocents (or eager ideologues) to carry the ball backward into the past.

No More Racism

Amusingly, since November, a new form of casuistry has entered the conservative toolbox. Coleman argues explicitly that "the Amer­ica that has elected Barack Obama as its first African-American president is far different than when [the VRA] was first enacted in 1965," a weaseling notion already amplified by conservative media. In The Washington Times, constitutional fundamentalist Bruce Fein challenged the Obama administration to uphold "colorblind" standards and abandon preclearance, pointing to Obama's election as self-evident justification. The people who most vehemently worked against Oba­ma, very often in racially coded ways, are suddenly welcoming the new dawn of a post-racial era – meaning we no longer need those annoying and intrusive laws promoting political integration and defending minority rights.

They somehow fail to note that in the states still subject to preclearance (such as Texas), voting remains racially polarized; for example, 73% of white Texans voted for John McCain. That's not nearly as embarrassing, I suppose, as those 23% of our neighbors still convinced that Obama is a Muslim. Nothing racially minded there, I'm sure.

If Coleman, Blum, and the American Enterprise Institute succeed in overturning VRA preclearance, devious politicians in East Texas, South Texas, the Pan­handle, and elsewhere – hell, the whole damn state and on through the South – will be on formal notice that it's once again bureaucratic open season on minority voters. Crank up the polling booth shuffle – and if the feds don't like it, they can sue. And the respectable folks in Canyon Creek, if they ever have occasion to consider such matters, will be able to pat themselves on the back for their small but crucial role in obstructing the path to justice.

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Canyon Creek, Northwest Austin Municipal Utility District No. 1, U.S. Supreme Court, Edward Blum, eSlate, voting rights

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