- The Washington Times - Monday, February 25, 2013

The Supreme Court this week will take up a potentially landmark case that could end almost five decades of Justice Department intervention that gives the federal government control over voting decisions in states and localities with a history of discrimination.

Shelby County, Ala., is challenging a key provision in the 1965 Voting Rights Act that requires all or parts of 16 states with a history of discrimination in voting to get federal approval before making any changes in the way they hold elections.

If successful, the challenge, which the high court will hear Wednesday, would strike down a major legislative tenant of President Lyndon Johnson’s civil rights legacy — though it’s one many argue is outdated and unnecessary.

“It’s a significant case — the voting rights act is a landmark piece of civil rights legislation,” said Myrna Perez, senior counsel at the Brennan Center for Justice at the New York University Law School. The law “becomes less and less controversial over time.”

The advance approval, or “preclearance” requirement, was adopted as part of the 1965 law to give the federal government a potent legal tool to defeat persistent efforts to keep blacks from voting.

But Shelby County, near Birmingham, says it has made significant progress in combating voter discrimination and no longer should be forced to live under oversight from Washington.

The plaintiff also argues that preclearance is an encroachment on state sovereignty.

“Shelby County is a dynamic, fast-growing and forward-looking county with nearly 200,000 diverse Alabamians, and they as a county have never been called on the carpet,” said Edward Blum, director of the Project on Fair Representation, a Washington, D.C.-based nonprofit that is providing free legal advice to Shelby County.

Mr. Blum added it has been about 15 years since the Justice Department has had any problems with the way Shelby County conducts elections.

“These provisions are burdensome and unfair and there is no reason why Shelby County, Ala., should be covered by this provisions but not Shelby County, Tenn.”

But proponents of preclearance, often called “Section 5” for its numerical placement in the Voting Rights Act, say that just having it on the books is an enormously effective legal tool for deterring potential voter discrimination.

“Section 5 is a detriment to behaving badly,” Ms. Perez said. “If anything, it deflates the number incidents of problems because people are going to be circumspect or careful about what they try to put forward because they know they’re going to be subject to a review.”

Ms. Perez’s Brennan Center, as well as a bipartisan group of lawmakers from the House Judiciary Committee, and Senate Majority Leader Harry Reid, Nevada Democrat — among others — have filed briefs urging the Supreme Court to keep preclearance.

Despite significant improvements combating voter discrimination in recent decades, Congress has reauthorized the Voting Rights Act several times, most recently for another 25 years in 2006 with broad bipartisan majorities in both chambers — including a 98-0 Senate tally.

This week’s Supreme Court hearing isn’t the first time its justices have faced — or potentially faced — the preclearance issue. In 2009, the Northwest Austin (Texas) Municipal Utility District No. 1 argued it should be allowed to “bailout” of the advance approval. In an 8-1 opinion, the court declined to rule on the constitutionality of preclearance, saying the small utility didn’t meet the requirements of a “political subdivision.”

The constitutionality of preclearance has come before the high court four previous times, but survived each challenge.

Ms. Perez said she expects the Supreme Court will uphold the requirement this time.

“I think the law is pretty clear. I think the Constitution makes it very easy that Congress gets a lot of deference when deciding this question,” she said.

But Mr. Blum argues Congress’ overwhelming support in 2006 for renewing the Voting Rights Act is no guarantee the Supreme Court will uphold the law.

“In 2006 [Congress] was really required to build a record that shows ongoing racial discrimination in elections in these [preclearance] jurisdictions,” he said. “I think it’s safe to say Congress was unable to do that.”

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