- The Washington Times - Thursday, April 30, 2009

Less than six months after the election of the nation’s first black president, the Supreme Court heard arguments Wednesday in a case that at its core questions how far race relations have really come in this country.

At issue is a provision from the landmark 1965 Voting Rights Act that requires the U.S. Justice Department to approve any changes in voting procedures, such as moving polling locations or redistricting, in areas that have a history of racial discrimination - almost exclusively in the South. The Voting Rights Act has never changed, but has been reauthorized by Congress several times, most recently in 2006 for another 25 years.

A small district in Texas wants to opt out of the law’s requirements and has sued the federal government, saying the law, meant to address Jim Crow-era discrimination, is outdated. The district asked the Supreme Court to declare the law unconstitutional, or at least rule the district does not have to follow it.

The conservative justices of the court continually questioned the government’s lawyers on whether it is fair to apply a law to only some states, regardless of instances of actual discrimination, while liberal justices said they doubted whether racism has subsided sufficiently to dismiss the law.

“Obviously, no one doubts the history here, and that the history was different,” Chief Justice John G. Roberts Jr. said. “At what point does that history stop justifying action with respect to some jurisdictions but not with respect to others that show greater disparities?”

Justice Anthony M. Kennedy, considered the likely swing vote in the case, said the law has been successful, but continually expressed reservations about its fairness.

“Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio, the sovereignty of Alabama is less than the sovereign dignity of Michigan, and that the governments in one are to be trusted less than the governments in the other,” he said. “This is a great disparity in treatment and the government of the United States is saying our states must be treated differently. You have a very substantial burden if you are going to make that case.”

As Justice Samuel A. Alito Jr. noted, the court has before it both an “an immense constitutional question” and a narrow request by the small Northwest Austin Municipal Utility District No. 1, a five-member elected board created in 1987 which mainly manages financial issues. The court can avoid the larger constitutional question by simply ruling the utility district is exempt from requirements of the Voting Rights Act.

Neil Katyal, the deputy solicitor general who are argued the case on behalf of the government, defended the law, saying it has “franchised millions of Americans” and served as a powerful deterrent against voting discrimination.

“It’s the elephant whistle: ‘I have this whistle to keep away the elephants,’ ” Chief Justice Roberts said. “Well, that’s silly, there are no elephants, so it must work.”

But Justices Ruth Bader Ginsburg and David H. Souter agreed with Mr. Katyal’s argument that without the law’s requirements, increases in minority political participation since the 1960s would be undone.

Justice Souter said that without safeguards “the push back is going to start. It’s never stopped.”

President Obama’s election victory was not mentioned during Wednesday’s oral arguments, but it was cited in the brief submitted by lawyers for the utility district as an example of how far the nation has come on the issue of race.

The National Association for the Advancement of Colored People, which joined the U.S. government in the case, bristled at such assertions.

“There have been African-Americans to rise to high office throughout our history, but that occasion of a single person sitting in a seat doesn’t change the experience on the ground for everyday citizens,” Debo Adegbile, a lawyer for the NAACP, told the court Wednesday. “It doesn’t mean that voters that are trying to vote in a school board election in Louisiana are going to have an easy time of it where racially polarized voting is as extreme as it is and when election officials try to manipulate the rules of the game to try to disadvantage the minority community.”

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