- The Washington Times - Sunday, June 9, 2013

The Supreme Court is expected this month to announce rulings on two key voting rights cases that could reshape how Americans nationwide cast ballots in federal elections.

The more high-profile of the two pending rulings — which could come as early as this week — involves an Alabama county that is pushing back against federal oversight of its election procedures. The other centers on an Arizona law that requires voters to submit documentary proof of citizenship when registering to vote.

While both cases deal with specific jurisdictions, the court’s decisions will set legal precedents that could — depending on whether the justices uphold, strike down or suggest changes in the laws — trigger states nationwide to reform the way they hold elections and who they allow to vote.

“There’s a number of approaches the court could take but I do think what’s at stake are some really important protections that Congress has put in place pursuant to its power under the Constitution to make voting freer, fairer, more accessible,” said Myrna Perez, senior counsel at the Brennan Center for Justice at the New York University School of Law.

In the Alabama case, Shelby County — a mostly white suburb of Birmingham — 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 would strike down a major legislative feature of President Johnson’s civil rights legacy — though it’s one many argue is outdated and unnecessary.

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.

“For nearly five decades [preclearance] has been one of the most effective tools this country’s had to eradicate racial discrimination in voting,” said Ms. Perez. Her employer, the Brennan Center, has filed a brief urging the Supreme Court to keep the policy intact.

Shelby County 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.

Edward Blum, director of the Project on Fair Representation, a D.C.-based nonprofit providing legal advice to Shelby County, says the county and other jurisdictions covered under preclearance deserve the opportunity to have their “sovereignty and dignity” restored.

“We are a different and better nation today so it is only right that our federal laws should treat each of the 50 states equally,” said Mr. Blum in statement after the Supreme Court held oral arguments on the case in February.

But Jamin B. Raskin, a constitutional law professor at the American University Washington College of Law, says recent reports of voting rights violations in Shelby County suggest federal oversight of elections there still is needed.

“The struggle over minority voting rights simply hasn’t ended, and [Shelby] County itself is a really good example of that,” he said.

Preclearance supporters also point out that despite significant improvements nationwide 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.

“Congress considered a vast amount of evidence in making the determinations that it did as to who should be covered” under preclearance, Ms. Perez said. “And the Constitution makes it very, very clear that Congress’ determination is entitled to a lot of deference.”

During oral arguments, conservative and liberal-leaning justices engaged in often terse back-and-forth, suggesting a 5-4 decision.

Justice Anthony M. Kennedy, considered the swing vote on the case, suggested that while preclearance has had a positive effective in the fight against voter discrimination, it may also have outlived its usefulness, saying “times change.”

Regarding which way a 5-4 decision would swing, Mr. Raskin joked it “depends on which side of the bed Justice Kennedy walks up on that day.”

The Arizona case, meanwhile, involves a law designed to stop illegal immigrants from voting. The law, approved by state voters in 2004, requires residents to show “satisfactory evidence” of citizenship — such as naturalization papers, a birth certificate, passport or Indian tribal identification — before registering to vote. A standard Arizona driver’s license also is accepted because the state requires proof of citizenship to obtain one.

A group of Arizona residents, Indian tribes and civil rights organizations challenged the law, and an appeals court ruled in their favor, saying the citizenship requirement conflicted with the 1993 federal law known as the “Motor Voter Law,” designed to make it easier for people to register to vote. Arizona appealed and the Supreme Court agreed to take the case.

Arizona and other supporters of the law — mostly Republicans — say the citizenship requirement is a valuable tool to combat voter fraud.

But the law’s critics, mostly Democrats, Hispanic rights organizations and civil rights groups, say the law imposes an unfair burden on residents and threatens to disenfranchise minorities, the poor, the elderly and students — typically Democratic-leaning voters.

“No one challenges in theory the idea that people’s identify and relevant citizenship needs to be established before voting,” said Mr. Raskin, a Democratic Maryland state senator. “But the question is whether the government sets up so many thresholds and barriers that it acts as a deterrent to participation.”

The courts in recent years have upheld several challenges to state laws that have strengthened rules requiring voters to show identification before casting ballots, including a landmark 6-3 Supreme Court decision in May 2008 that upheld a photo ID requirement in Indiana.

But because the Arizona’s voting requirement centers around proof of citizenship — not just a photo ID — many legal analysts say it’s difficult to guess what the court will decide.

“The Indiana case [and the Arizona case] are apples and oranges,” Ms. Perez said. “They’re different claims under different statues with different jurisprudential and precedential histories.”

• Sean Lengell can be reached at slengell@washingtontimes.com.

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