On Voting Rights, Test of History v. Progress
WASHINGTON — Ellen D. Katz is a liberal law professor and a big fan of the Voting Rights Act of 1965, which she calls the most effective civil rights legislation in American history. “It’s sacred,” she said. “It’s holy.”
But Professor Katz is torn about what the Supreme Court should do in a case asking it to strike down a central part of the law. She cannot shake the feeling that the election of the nation’s first black president has changed everything.
“This election was momentous,” said Professor Katz, who teaches voting rights and legal history at the University of Michigan, “and it arguably presents the moment when Congress should close out this regime.”
That Barack Obama is now president is not directly relevant to any issue in the case, Northwest Austin Municipal Utility District No. 1 v. Holder, No. 08-322, which will be argued on Wednesday and is widely considered the most important of the term.
Yet as they consider whether to cut off one of the great legal legacies of the civil rights era, the justices may be asking themselves the inevitable question: Is a law rooted in the age of Jim Crow still needed in the Obama era?
The central question before the court, though, is this: Did Congress overstep its constitutional power in 2006 by reauthorizing Section 5of the act, which requires states and localities with a history of discrimination to obtain federal permission before making changes to their voting procedures?
“Obama inexorably shapes how we understand Section 5 today,” Professor Katz said, adding that the court should take the unusual step of finding a way to force Congress to take a fresh look at the law, which expires in 2031.
Theodore M. Shaw, a law professor at Columbia and a former president of the NAACP Legal Defense and Educational Fund Inc., said the court should not place too much weight on a single election. “We’ve had a profound moment, and we’re in a different place,” Professor Shaw said. “But race still plays powerfully in electoral politics in this country. If it weren’t for the Voting Rights Act, there would be noPresident Obama.”
The act was a triumph of the civil rights movement. It took on, as the Supreme Court said in upholding it in 1966, the “insidious and pervasive evil” of state officials defiantly committed to denying blacks the right to vote.
At the act’s heart is Section 5, which requires state officials to get permission from the Justice Department or a federal court before they make even minor changes to voting procedures. Such federal intrusion into state affairs through “preclearance” rather than subsequent litigation was needed, the Supreme Court said in 1966, to address “unremitting and ingenious defiance of the Constitution” by state officials.
The court has repeatedly upheld the act. Just last month, even as it limited another part of the law, three relatively conservative justices in the majority acknowledged that more work was needed to ensure equal access at the polls.
Some state officials, mostly in the South, bristle at what they say is the stigma, burden and federal intrusion that come with being covered by Section 5.
Gov. Bob Riley of Alabama, a Republican, conceded in a friend-of-the-court brief that his state’s racist policies had earned it a place on Section 5’s original coverage list. “Through acts of violence and willful defiance of federal law,” Mr. Riley told the court, “Alabama maintained an all-white legislature and 19 percent black voter registration in 1965.”
Today, though, he said, black and white voter registration rates are virtually identical — 72.9 percent for blacks and 73.8 percent for whites. And a quarter of the state legislators are black, almost exactly reflecting the state’s population.
In extending the Voting Rights Act in 2006, Mr. Riley said, “Congress wrongly equated Alabama’s modern government, and its people, with their Jim Crow ancestors.”
Besides Alabama, Section 5 applies to Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas; most of Virginia; counties and townships in California, Florida, Michigan, New Hampshire, North Carolina and South Dakota; and three New York City boroughs: Manhattan, Brooklyn and the Bronx. The act requires federal permission before making changes in voting procedures like how registration is conducted, where polling places are put, how elections are publicized and where the boundaries of voting precincts are drawn.
Most changes are minor, but redistricting or wholesale revisions of election laws can require complicated, expensive and time-consuming submissions.
A supporting brief urging the court to uphold the law filed by six states at least partly subject to the preclearance requirement said the minor burdens were offset by benefits including expert guidance in avoiding discrimination, less litigation and better race relations. The law also allows jurisdictions with clean records to ask a court to let them “bail out” of the preclearance requirements.
The jurisdictions subject to Section 5 were selected based on whether they had used devices to discourage voting, like literacy tests, and data from the 1964, 1968 and 1972 elections. Congress did not tinker with those decades-old criteria when it renewed in 2006.
The question before the Supreme Court is not whether the criteria were optimal but whether Congress acted beyond its constitutional authority in using them.
There are arguments on both sides. On the one hand, Congressional power is at its peak in the areas of race and voting. On the other hand, the federal intrusion under Section 5 is unique in American legal history.
The Supreme Court has repeatedly upheld the Voting Rights Act and its earlier extensions. But a 1997 decision in a religion case, City of Boerne v. Flores, may require the court to subject the latest extension to more exacting scrutiny than it has in the past, one that asks not only whether legislation was a rational response to constitutional violations but also whether it was “congruent and proportional” to them.
The case before the court was brought by a Texas utility district that was established on undeveloped land in the late 1980s. The district said it had never been accused of voting discrimination. Lawyers for the district told the court that the current Voting Rights Act “treats racism as an inheritance that runs with the land rather than a manifestation of attitudes and actions of living individuals.”
The crucial vote on the court will probably be that of Justice Anthony M. Kennedy. In another voting rights case decided last month,Bartlett v. Strickland, Justice Kennedy indicated that he might oppose eliminating Section 5 of the Voting Rights Act.
“Racial discrimination and racially polarized voting are not ancient history,” he wrote. “Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions.”
