The Washington Post
Court hears challenge to Voting Rights Act
By Spencer S. Hsu
February 2, 2011

Conservative legal activists are set to renew their campaign to overturn the nation’s landmark Voting Rights Act, arguing before a federal district judge in Washington on Wednesday that states and local jurisdictions should no longer be forced to justify voting changes to the Justice Department or a federal court.

The lawsuit, brought by officials in Shelby County, Ala., revives a constitutional challenge aimed at the heart of the 1965 law, a challenge that many analysts called the most important issue of the year when it reached the Supreme Court in 2009.

The high court ultimately sidestepped the question, but not before Chief Justice John G. Roberts, writing for the panel’s ascendant conservative majority, signaled a willingness to entertain future challenges, writing, “Things have changed in the South.”

U.S. District Judge John D. Bates of the District set 21/2 hours for arguments Wednesday in the ceremonial courtroom of the E. Barrett Prettyman Federal Courthouse in downtown Washington – four blocks from the Supreme Court, where many observers expect the case ultimately to wind up.

At issue is Section 5 of the voting rights act, which requires federal approval – or “pre-clearance” – for any changes in election laws or redistricting decisions in nine states, mostly in the South, and parts of seven others.

Congress overwhelmingly passed the law and the Supreme Court upheld it to dismantle a system of poll taxes, literacy tests and other strategies used for decades by white leaders in the deep South and elsewhere to suppress registration and turnout by voting-age blacks.

Congress has reauthorized the law several times, most recently in 2006. However, critics allege that lawmakers merely extended the law to the same jurisdictions – for 25 years – without examining whether some should be added or removed, or whether circumstances had changed in the intervening four-plus decades.

“There can be no question that the VRA ushered in long-overdue changes in electoral opportunities for minorities throughout the Deep South,” attorneys for Shelby County wrote in the lawsuit, filed last April.

However, they wrote, “it is no longer constitutionally justifiable for Congress to arbitrarily impose on Shelby County and other covered jurisdictions disfavored treatment … without a legislative record showing that [they] are still engaged in the type of ‘unremitting and ingenious defiance of the constitution’ that justified enactment of the VRA in 1965.”

The Justice Department, joined by intervenor defendants including the Alabama State Conference of the NAACP and several minority voters, countered that Congress held 21 hearings and collected 16,000 pages of testimony to establish that the act is still needed. The department has rejected or forced modifications since 1982 to 800 proposed changes by covered jurisdictions, including 420 cases in which changes appeared to be “intentionally discriminatory.”

“Congress’ considered judgment that racial and language minorities remained politically vulnerable … is not only amply supported by the legislative history but is entitled to deference by the courts,” Justice lawyers wrote in seeking to dismiss the case.

The Shelby case follows the Supreme Court’s ruling in a test case brought by a municipal utility district in Austin. The court in June 2009 avoided the underlying issue by ruling narrowly that such small jurisdictions have the same right as states and counties to try individually to “bail out” of Section 5’s restrictive provisions.

Such “bailouts” are so cumbersome that since 1982 only 17 of 12,000 jurisdictions covered by the act – all of them in Virginia, including Fairfax City – have won such exceptions. In any case, Shelby County is not eligible, because it has run afoul of pre-clearance requirements on two previous occasions.

Chief Justice Roberts noted in the 8-1 opinion that Congress’s actions “raise serious constitutional questions” about whether Section 5 is still needed, or can be deemed a relic of the nation’s past.

Voter turnout and registration rates for blacks and whites now “approach parity,” Roberts wrote. “Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”

“The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for pre-clearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”

Legal analysts have said Roberts’s leadership of a changing court suggests the provision is living on borrowed time. Still, defenders say race has hardly faded as a contentious issue in American democracy, notwithstanding President Obama’s election in 2008 as the nation’s first African American president.

For example, only about 10 percent of white voters in Alabama cast ballots for Obama, compared with 48 percent in states not covered by the provision.

State and federal lawmakers also have endorsed the act’s provision, with no states joining the legal effort to find it unconstitutional and Congress voting 98-0 in the Senate and 390-33 in the House to reauthorize it.

In a friend-of-the-court brief defending the act, lawyers for the Constitutional Accountability Center said arguments against federal intrusion “echo the same rejected arguments” for states’ rights used in defense of slavery and Jim Crow laws.

“History shows that the Fifteenth Amendment gave Congress broad power … to ensure that the right to vote free from racial discrimination would be fully enjoyed by all Americans,” wrote Judith E. Schaeffer and David Gans. “The Court should defer to Congress’ near-unanimous judgment.”