Nov. 10 (Bloomberg) -- The U.S. 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 yesterday 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.
With the justices already considering whether to roll back university affirmative action, the court’s current term is now a potential watershed for the legal rules governing race. 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 in New Haven, Connecticut, 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 court will hear arguments early next year and rule before its term ends in late June. The justices yesterday also agreed to decide whether states can collect DNA samples from anyone arrested for a serious crime.
The Voting Rights Act was enacted to combat discrimination that kept black people away from Southern polling places for generations. A separate section of the law bars voting discrimination nationwide and isn’t affected by the high court case.
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, Alabama, 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.
Congress let some areas escape coverage if they can show compliance with anti-discrimination rules. Lawmakers also allowed judges to put other areas under the preclearance system.
Section 5 now governs a patchwork of jurisdictions around the country. Parts of some covered states are exempt, while selected cities and counties in California, Florida, New York, North Carolina, South Dakota, Michigan and New Hampshire are covered.
Shelby County contends that when Congress reauthorized the Voting Rights Act in 2006, it lacked grounds for treating some states differently than others. The county says the voter-ID laws in Texas and South Carolina shouldn’t be judged under a tougher standard than those in non-covered states.
“Placing a jurisdiction in federal receivership raises fundamental questions of state sovereignty,” Shelby County argued in court papers. “Doing so selectively, absent compelling justification, unconstitutionally departs from the historic tradition that all the states enjoy equal sovereignty.” The county sued to challenge the preclearance requirement in 2010.
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.
“The evidence reflects that the geographic scope of Section 5 continues to map onto the jurisdictions with the worst records of voting discrimination,” U.S. Solicitor General Donald Verrilli said.
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.
The court avoided the constitutional question in that 2009 decision, instead reaching a compromise that made it easier for some local governments to seek an exemption from the preclearance rule.
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.”
Shelby County sued after a clash between one of its cities, Calera, and the federal government. The Justice Department said a new Calera election map would slash the percentage of registered black voters from 71 percent to 30 percent in one of the city’s five districts. At the time, that district was the only one with a black representative on the city council.
Calera later reached a settlement with the Justice Department and shifted to an at-large system, with representatives elected citywide.
Opponents of the preclearance requirement point to the election results as evidence the rule is now outdated.
“The America that elected and re-elected Barack Obama as its first African American president is far different than when the Voting Rights Act was first enacted in 1965,” said Edward Blum, who helped put the Shelby County lawsuit together as director of the Alexandria, Virginia-based Project on Fair Representation. “Congress unwisely reauthorized a bill that is stuck in a Jim Crow-era time warp. It is unconstitutional.”
The court heard arguments Oct. 10 in the affirmative action dispute over the University of Texas admissions program. Roberts and other justices questioned whether universities should continue giving preference to racial minorities, as almost all selective colleges do to ensure a diverse student body.
The case is Shelby County v. Holder, 12-96.
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