Clunky as it is, "Northwest Austin Municipal Utility District Number One" is a familiar name in election law circles.

A lawsuit filed on behalf of the tiny voting district — a "MUD" serving some 3,000 people outside Austin (in an area bounded by Loop 620, Parmer Lane and McNeil Drive) — has some observers predicting the downfall of an integral provision of the Voting Rights Act, depending on the mood of the U.S. Supreme Court.

Lawyers on both sides have made their arguments in the MUD's suit. It now awaits judgment from a three-judge panel in Washington, D.C.

The gist is this: the MUD wants to "bail out" of VRA Section Five, which requires nine states (including Texas) and parts of seven others to seek "pre-clearance" from the feds before altering anything related to elections. This includes redistricting, changing the number of elected officials in a town, or even, in the case of the MUD, proposing to move a polling place from a family's garage to the school down the road.

The states and regions covered by Section Five got there because of historic discriminatory election practices as of 1972 — like badly behaved kids having to show their parents that they're finished with their homework before they can go play, while their brainy siblings come and go at will.

The coverage formula hasn't been updated in more than 30 years. And instead of parents, oversight is in the hands of the Department of Justice or a three-court panel from D.C.

The MUD suit raises a question: Is the 30-year-old coverage formula unfair to states like Texas, while places like Arkansas and Oklahoma aren't under the same scrutiny?

"We're not dumber than Arkansas. We should be able to do this just like West Virginia or Kentucky," says Edward Blum, a visiting fellow at the D.C.-based American Enterprise Institute for Public Policy Research.

Blum, a former longtime Houston resident who splits his time between Washington and Austin, also runs the Project on Fair Representation Legal Defense Foundation, which is providing resources to MUD attorney Greg Coleman and acting as co-counsel for the MUD.

Coleman formerly clerked for Associate U.S. Supreme Court Justice Clarence Thomas and was Solicitor General under then-Attorney General John Cornyn.

In 1992, Blum, then in the investment business, ran for Congress as a Republican in Houston's CD-18. He lost to Democrat Craig Washington but won a Supreme Court case where he argued that the redistricting plan was unconstitutional. Blum says he's been involved with election and race-based law ever since.

The VRA does have a provision where a county can "bail out" of Section Five scrutiny if it shows it has cleaned up its act and is election-friendly to all ethnicities.

So the second MUD questions is: Can so-called sub-jurisdictions — like the MUD — "bail out" of Section Five, or does this have to occur on a county-by-bounty basis?

This is the MUD's primary aim in court, says Blum. "We're not looking to strike down Section Five," he says. "We're trying to get the right of sub-jurisdictions to bail out."

Whatever the D.C. panel decides, lawyers on the losing side will most likely appeal to the Supreme Court, which recently took on another hot-button election law case dealing with a photo ID requirement to vote in Indiana.

"They will almost certainly hear the [MUD] case, regardless of what happens," says Rick Hasen, a professor at Loyola Law School in Los Angeles. (Hasen wrote the book on election law, literally; it's called Election Law: Cases and Materials.")

When the VRA was up for reauthorization last year, Hasen argued before the Senate Judiciary Committee that the outdated coverage formula could pose constitutional problems for the Act if it comes before the Supreme Court (U.S. Sen. Cornyn, a member of that committee, agreed with Hasen in a report to the full Legislature). Hasen also argued that the law should make it easier for jurisdictions to bail out of Section Five.

Blum and Hasen identified a few possible courses of action the Court could take, assuming the judges hear the case at all:

1) It could reject the MUD's claims and leave Section Five alone.

2) It could rule that sub-jurisdictions have the right to seek a bailout, while upholding the constitutionality of the rest of Section Five.

3) It could rule that sub-jurisdictions do not have the right to bail out, so Section Five is unconstitutional because these well-behaved districts are being punished unfairly.

Hasen isn't predicting that the Court will strike down Section Five, but if it does, it would be up to Congress to patch things up, whether that means updating the coverage formula and/or changing the bailout provision.

If Texas escapes from Section Five, then lawmakers will be free to redraw districts as they please after the 2010 census, and it will be up to individuals to challenge the legality of the new districts without the added firepower of the Justice Department. The successful challenges to parts of Texas' 2003 redistricting plan weren't based on Section Five, but on citizen lawsuits.

In 2006, the Court upheld the plan as a whole but invalidated one district, CD-23, saying it violated a different part of the VRA that applies to all 50 states.

The DOJ rejected a Texas statehouse redistricting plan in 2001, but hasn't turned down a congressional plan since 1992.

Blum points out that states under Section Five have cleaner election records than states not under the restraints. Hasen, though, sees the fairly good recent track record as possible evidence that current statute is working — not that Texas can be trusted if freed from Section Five and left to its own recognizance.

"Part of the reason why Texas may not have had any denials, they've learned what they need to do to get DOJ clearance," he says. "If you don't need DOJ clearance anymore, plans might change."

Blum argues that if Section Five is struck down, citizens in Texas who suspect foul play in redistricting would have the same recourse as residents in other states — as LULAC did here in 2003, and as he did in 1992.

If the courts upset Section Five, Blum foresees similar lawsuits cropping up soon. Hasen says it's hard to guess what the justices will do.

While the Supremes have upheld the VRA twice, in 1980 and 1996, this is the first time they'll be looking specifically at Section Five.

"This is the test case," Hasen says.

Ashley Burton, a spokesperson for Texas Secretary of State Phil Wilson, who is in charge of Texas' elections, said they couldn't comment on the lawsuit yet.

— by Patrick Brendel