Challenge to the Voting Rights Act Reaches Supreme Court

But Bert Rein, the attorney representing Shelby County sees the 2006 legislative record very differently. "At most," he writes in court briefs, "the 2006 legislative record shows scattered and limited interference with voting rights, a level plainly insufficient to sustain Section 5 preclearance."

He acknowledges that the Voting Rights Act "changed the course of history" but says that the record that was before Congress is outdated.

"Nothing in the record suggests that covered jurisdictions remain engaged in the pervasive voting discrimination and electoral gamesmanship that once made case-by-case adjudication of constitutional violations a futile enterprise and spurred Congress to act," he writes.

Carrie Severino, chief counsel of the Judicial Crisis Network, agrees that Congress found that discrimination still exists, but says the covered jurisdictions should no longer be treated any differently than the uncovered jurisdictions.

"Taken as a group, the covered jurisdictions are not any worse in terms of discrimination," says Severino." Congress should either base its extra burdens on states that show current problems with discrimination, or make voting regulations that apply equally to all states."

Rein says that there are other remedies in the Voting Rights Act, such as Section 2 of the law, that can be used to protect the rights of minority voters. Under Section 2, which applies to all states, the burden is on the plaintiff who alleges that he or she has been the victim of some form of voting discrimination to file a lawsuit.

Lawyers for the NAACP Legal Defense Fund say that Section 2 is not the remedy. "Litigation under Section 2 of the VRA is time consuming, costly and permits racial discrimination to take root in the electoral process before it can be remedied."

In their briefs, the lawyers outline instances in covered jurisdictions that they say prove the continued necessity of Section 5. The city of Calera, in Shelby County, for example, submitted a redistricting plan in 2008 that eliminated the only majority-black district. Calera then held an election for City Council based on the changes that had not been precleared. The election resulted in the defeat of Ernest Montgomery, the only African-American on the City Council. Only after the Department of Justice brought a challenge did Montgomery retain his seat.

A lower court upheld the Section 5 ruling that while the legislative record is "by no means unambiguous," it would defer to Congress. "Congress drew reasonable conclusions from the extensive evidence it gathered," the court ruled.

But conservatives on the Supreme Court expressed reservations about Section 5 as recently as 2009.

In a related case, Chief Justice John Roberts wrote that the " historic accomplishments of the Voting Rights Act are undeniable."

But he said that voter turnout and registration rates in the South "now approach parity," that "blatantly discriminatory evasions of federal decrees are rare" and that "minority candidates hold office at unprecedented levels.

"The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance."

He sent a strong warning to Congress: "The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions."

The case will be decided by July.

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