Three years ago, the Supreme Court warned there could be constitutional problems with a landmark law that has opened voting booths to millions of blacks. Now, opponents of a key part of the Voting Rights Act are asking the high court to finish off that provision.
The basic question is whether state and local governments that once engaged in racial discrimination still can be forced in the 21st century to get federal permission before making any changes in how they hold elections. The Supreme Court could say as early as Monday whether it will consider ending that rule.
The governments covered — most in the South — argue they have turned away from racial discrimination over the years. But Congress and lower courts have said a history of bias and recent efforts Democrats say are aimed at minority voters justify continuing the act's advance-approval requirement.
The justices sidestepped this issue in a case from Texas in 2009. In an opinion joined by eight justices, Chief Justice John G. Roberts Jr. wrote then that the issue of advance approval "is a difficult constitutional question we do not answer today."
Since then, Congress has not addressed potential problems identified by the court. Meanwhile, the law's opponents sensed its vulnerability and filed several new lawsuits.
The advance approval, or preclearance requirement, was adopted in the Voting Rights Act in 1965 to give federal officials a tool to defeat new efforts to keep blacks from voting.
Congress has renewed the provision several times over the years, most recently in 2006, when a Republican-led Congress overwhelmingly approved and President George W. Bush signed a 25-year extension.
The requirement currently applies to the states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. It also covers certain counties in California, Florida, New York, North Carolina and South Dakota, and some local jurisdictions in Michigan and New Hampshire. Coverage has been triggered by past discrimination not only against blacks, but also against Hispanics and other ethnic minorities.
Before these locations can change their voting rules, they must get approval either from the Justice Department's Civil Rights Division or from the federal district court in Washington that the new rules won't discriminate.
Congress compiled a 15,000-page record and documented hundreds of instances of apparent voting discrimination in the states covered by the law dating to 1982, the previous time it had been extended.
In 2009, Chief Justice Roberts indicated the court was troubled about the ongoing need for a law in the face of dramatically increased minority-voter registration and turnout rates, change which he partially attributed to the law itself. "Past success alone, however, is not adequate justification to retain the preclearance requirements," he said.
He also raised concern that the formula by which states are covered relies on data that is now 40 years old. By some measures, states covered by the law were outperforming some that were not.
In the federal court of appeals in the District of Columbia, Circuit Judge Stephen Williams objected that the law specifies that these criteria are measured by what happened in elections several decades ago.
But writing for a majority that upheld preclearance, Circuit Judge David Tatel said the question is not whether old data is being used, but whether it helps identify jurisdictions with the worst discrimination problems. "If it does, then even though the formula rests on decades-old factors, the statute is rational," Judge Tatel said.
Shelby County, a well-to-do, mostly white bedroom community near Birmingham, Ala., adopted Justice Roberts' arguments in its effort to have the voting rights provision declared unconstitutional, but lost in the lower courts. The county's appeal is among those being weighed by the justices.