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Is part of Voting Rights Act outdated, unfair? High Court to decide.

November 09, 2012|By David G. Savage
  • A sign advertising the protection of voter rights is posted outside a polling site in Cleveland. A county in Alabama is challenging a provision that requires much of the South to get advance approval from Washington before making changes in election laws or voting rules.
A sign advertising the protection of voter rights is posted outside a polling… (David Maxwell / EPA )

WASHINGTON — Acting just three days after the election, the Supreme Court announced Friday it will consider lifting a legal cloud that has hung over the South since the 1960s and strike down part of the landmark Voting Rights Act as outdated and unfair.

The justices agreed to hear an Alabama county’s challenge to the provision that requires much of the South, including its cities and counties, to get advance approval from Washington before making changes in election laws or voting rules.

The new voting rights case, along with a pending decision on college affirmative action, will make this year’s court term a momentous one for civil rights. The common theme in both cases is whether a 1960s-era remedy for racial discrimination is still needed and still justified today.

The announcement comes after voting rights advocates went to court in several states to challenge new Republican-sponsored laws that tightened the rules for casting a ballot or cut back on early voting. And it follows a national election in which an extraordinary turnout by Latino and black voters was credited with tilting the outcome in favor of the Democrats.

But the court’s conservative justices have made clear they are troubled by Section 5 of the Voting Rights Act, which puts the South under special scrutiny.

The Alabama case to be heard next year does not contest the constitutionality of the law itself, which makes it illegal to enforce any voting procedure or election law that discriminates against voters because of their race.

The justices had considered the challenge to the Voting Rights Act in several of their weekly closed-door meetings. After Friday’s conference, the first since the election, they announced the had voted to hear the appeal.

Three years ago, Chief Justice John G. Roberts Jr. served notice in another case that time may be running out for the “pre-clearance” rule.

“Things have changed in the South,” Roberts said then, noting blacks now register and vote there at about the same percentage as whites. And several of the southern states that are under the special scrutiny of the law have a higher percentage of blacks who vote than in northern states which are not covered.

Roberts also questioned the idea of singling out some states for different treatment under federal law. “Our historic tradition (is) that all the states enjoy equal sovereignty,” he said.

In 2009, the chief justice stopped short of boldly throwing out the law’s pre-clearance requirement. Instead, he fashioned a narrow, compromise ruling that allowed a Texas municipal water district to “bail out” of the Voting Rights Act. But his pointed and skeptical opinion set the stage for a future decision declaring Section 5 of the Voting Rights Act to be an unconstitutional infringement on states’ rights.

That prospect grew much larger today when the justices voted to hear a frontal attack on the law from Shelby County, Ala.

The case could also put the court in conflict with Congress, President Obama and the Justice Department. In 2006, Congress in a near unanimous vote extended the Voting Rights Act and its “pre-clearance” rule for another 25 years.

The Obama Justice Department has wielded the law in the last year to block enforcement of new voter-identification laws in Texas and South Carolina and to contest cutbacks in early voting in Florida. In all three instances, the Justice Department officials said the proposed changes would have a harmful impact on black or Latino voters.

In a related case, a federal court in Washington also blocked Texas from using a new electoral map that favored Republicans. The judges, relying on the Voting Rights Act, said the GOP plan undercut the voting power of the state’s growing Latino population.

Civil rights lawyers cited these recent decisions as proof that the law is still needed. They said it helps ensure that discriminatory measures will not go into effect.

Critics of the law cite these same decisions as evidence of its unfairness. They say the newly adopted voter-identification laws in Texas and South Carolina were nearly identical to a measure adopted by Indiana and upheld by the Supreme Court in 2008.

No one — not even the challengers in the case — disputes the historic achievement of the Voting Rights Act of 1965. It “served a noble purpose, and America is a freer and better place for it,” said the lawyers for six states that support the Alabama county.

The voting rolls in most of the nation are controlled by counties, and for a century after the Civil War, officials in the South conspired to prevent African Americans from registering and voting. Poll taxes, literacy tests and other schemes kept blacks from voting and kept political power in the hands of whites.

This happened even though the 15th Amendment had prohibited racial discrimination. In 1965, Congress was determined to make this promise into a reality. To ensure compliance, the new law said states that had employed discriminatory schemes in 1964 could not make changes in any election-related law without having it pre-cleared by the Justice Department or a panel of federal judges in Washington.

The law was revised slightly in the early 1970s to extend this provision to cities and counties that failed to accommodate voters who did not speak English.

The suit before the court does not challenge the part of the Voting Rights Act that authorizes legal attacks on voting changes that are intentionally discriminate based on race or ethnicity. But civil rights lawyers say these cases are often hard to prove.

Under “pre-clearance” rule, Justice Department civil rights lawyers can challenge new election laws before they go into effect on the grounds they are likely to undercut the voting power of blacks or Latinos.  


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