Bloomberg News, November 11, 2012
The Supreme Court will consider overturning a signal achievement of the civil rights movement, agreeing to hear a challenge to part of the 1965 Voting Rights Act in a case loaded with racial and political ramifications.
Acting three days after minority voters propelled President Barack Obama to re-election, the court Friday said it will review a provision that requires all or part of 16 mostly Southern states to get federal approval before changing their voting rules. Opponents say that “preclearance” provision is no longer warranted.
Chief Justice John Roberts has questioned the constitutionality of the preclearance rule, which the Obama administration used this year to stop Republican-backed voter-identification laws in Texas and South Carolina from going into effect.
Preclearance “has been one of the most powerful tools in the civil rights arsenal,” said Heather Gerken, a professor at Yale Law School who specializes in election and constitutional law. “It’s made more of a difference in improving the civil rights of African Americans than any other statute I can think of.”
The Voting Rights Act was enacted to combat discrimination that kept black people away from Southern polling places for generations.
Under the preclearance requirement, a covered jurisdiction must seek approval from the Justice Department or a federal court before changing voting district lines, polling places or other aspects of the election system. The Justice Department has used the requirement, also known as Section 5, to object to more than 2,400 state and local voting changes since 1982.
In the case before the justices, Shelby County, Ala., objects to the law’s method for determining which states are subject to Section 5. The law uses a formula that relies on a state’s decades-old voting patterns and rules.
The formula was designed to include the states with the deepest history of racial discrimination — Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. Three other states — Alaska, Arizona and Texas — were added in the 1970s when the statute was expanded to protect “language minority” groups.
The Obama administration urged the court not to take up the issue, saying a federal appeals court was correct in upholding the Voting Rights Act in the Shelby County case. The administration points to instances of intentional discrimination in covered states and to data it says show that those jurisdictions still need close monitoring.
Serious Constitutional Questions
A Supreme Court ruling in a 2009 case indicated that a majority of the nine justices may consider Section 5 to be outdated. Roberts wrote for the court that the provision raised “serious constitutional questions” because it applied only to some parts of the country. “We are now a very different nation” than in 1965, Roberts wrote.
Supporters of the Voting Rights Act say the 2012 election shows the law is still needed. Democrats and minority groups say Republicans engaged in voter suppression by imposing identification requirements and limiting early voting hours.
“At the time of the last case people wondered whether voting discrimination was still with us in the United States,” said Debo Adegbile, acting president and director-counsel of the NAACP Legal Defense Fund. “Today they know the answer is yes.”