Feb. 27, 2013— -- The Supreme Court is set to consider the constitutionality of part of the landmark Voting Rights Act of 1965 that the federal government says is still needed to prevent racial discrimination in voting.
Section 5 of the law requires nine full states and parts of seven others to get approval from either the Department of Justice or a federal district court in Washington, D.C., before they can change election procedures.
Most of the states required to get preclearance are in the South, where tactics aimed at intimidating African-American voters were rampant in the mid-20th century. But the states say that now they are being blamed for past practices and that the law was renewed for another 25 years in 2006 without proof that the affected states are still discriminating.
The plaintiff in the case, Shelby County, Alabama, will argue when hearings begin on Wednesday that many of the states and counties subject to Section 5 actually have higher African-American voting rates than states in the North.
But some of the law's supporters argue it's not just African Americans who need voter protections. Latinos are discriminated against as well, they say, and that discrimination is ongoing.
Texas Representative Trey Martinez Fischer, who represents part of the San Antonio area and serves as chairman of the Mexican American Legislative Caucus, thinks Section 5 is still justified. Texas was added to the list of states required to get preclearance in the 1970s, after it failed to provide ballots in different languages at the polls, and Martinez Fischer says the state offers several recent examples of why the provision is still necessary.
"Here we are going forward—what, 35 years?—and we're still seeing the same discriminatory actions," Martinez Fischer said during an interview with ABC/Univision in Washington, D.C., where he was in town to attend the hearing. "Things haven't gotten better in Texas."
Martinez Fischer also cited the recent Texas redistricting and voter ID cases. A redistricting map was shot down in August as willfully discriminatory against minority voters, and three judges voted unanimously several days later to overturn the state's voter ID law, saying it would impose burdens on minority voters.
Martinez Fischer said the argument that Section 5 is too restrictive is weak because the law allows states to apply for exemption from the preclearance requirement.
Since it was first passed, the Voting Rights Act has been expanded and renewed several times to counter discrimination against Latinos and other minorities. In addition to heavily Latino areas in Texas, parts of California, Arizona, Florida and New York were added to the list in the 1970s, and a collection of advocacy groups say doing away with the preclearance requirement would be particularly detrimental to Latinos.
"What we have seen is an increase in laws at the state level that target the immigrant status of individuals," Executive Director of the National Association of Latino Elected and Appointed Officials Arturo Vargas told ABC/Univision in early February. "People will typically apply those laws upon people they perceive to be foreigners."
The Section 5 provision does have its detractors, however. Edward Blum, a Michigan-born former investment broker, has been a vocal opponent of Section 5. He thinks rigorous voting laws are a good thing, but that they should apply everywhere, not just places like Shelby County.
"The voting rights law has a very powerful provision called Section 2, which is permanent," he told NPR recently. "It doesn't expire, and it applies coast to coast…That is the law that the federal government turned to [in order to] stop Ohio and Pennsylvania with the introduction of their voter ID laws [during the 2012 election]. If that law is good enough for Ohio and Pennsylvania, it should be the same law that is used in South Carolina and Texas if the government has objections to their voter ID laws."
Critics also argue that Section 5 is outdated, since the criteria used to determine which states should be required to get preclearance – including voter registration and turnout data – date from the early 1970s.
Martinez Fischer doesn't think either criticism is strong enough to warrant doing away with Section 5 completely. He says a history of discrimination in a state deserves consideration, and that if any modifications need be made to the law, they should be made in Congress, not just "invalidated entirely" because a few people disagree with them. He also says the exemption option lets states avoid unnecessary inclusion in Section 5, and that advocacy organizations can serve a role in monitoring discrimination in all areas, including those not specified under Section 5.
Furthermore, Martinez Fischer insists, along with the government, that the act was well vetted before it was reauthorized.
"Those who are tired of losing are the ones who want to get rid of the Voting Rights Act," he said.
Congressional Hispanic Caucus Chair Rubén Hinojosa (D-TX) joined other top lawmakers, including House Minority Leader Nancy Pelosi (D-CA), on the steps of the Supreme Court early Wednesday morning in support of Section 5.
"The Voting Rights Act restored justice, equality and fairness to our country's most sacred right," he said, "the right to vote."