Landmark Civil Rights Law in Jeopardy?

April 29, 2009— -- Some residents of a small Texas municipal district believe that a key section of landmark voting rights legislation -- created in 1965 to protect minorities in jurisdictions with a history of racial discrimination -- is archaic and should be abolished.

The debate has teed up today's Supreme Court argument, which could forever change the intersection between election law and civil rights.

"The America that has just elected Barack Obama is not the same America that existed when Section 5 was put into place," says Gregory S. Coleman, an attorney for the Northwest Austin Municipal Utility District.

Section 5 refers to the portion of the Voting Rights Act (VRA) that mandates that the Justice Department approve any change in voting procedures for covered jurisdictions.

Coleman will tell the Supreme Court justices that the district is suing the government because Congress was wrong to reauthorize key sections of the Voting Rights Act in 2006.

"At some point you have to say we've come far enough. Why do we and the other affected jurisdictions have to have the federal government looking over our shoulder," says Coleman.

He calls Section 5 -- which currently covers nine states and portions of another seven -- an "ancient formula" that has become a "badge of shame," and he argues that no election-related lawsuit has ever been filed against the district.

The lawsuit was prompted when some residents of the 3,500 community became infuriated that they had to spend two months and hundreds of dollars in legal fees just to move a polling place from a garage to a school. They support the broader goals of the Voting Rights Act but believe Section 5 should be scrubbed.

The case has civil rights lawyers worried. In briefs filed with the court, the NAACP Legal Defense Fund argues, "No statute in our history embodies America's commitment to democracy more clearly than the Voting Rights Act."

"We have Section 5 because of a history of jurisdictions doing everything conceivable to adversely affect the ability of African-Americans initially, and other minorities later, to exercise their right to vote," says John Payton, president of the Legal Defense Fund.

Voting Rights Act Still Necessary?

Payton dismisses any notion that enough progress has been made to make Section 5 unnecessary.

"Since the last authorization there have been hundreds and hundreds, hundreds of examples of jurisdictions trying to change practices and procedures to vote that would have adversely affected the minorities' right to vote," he says. "The fact that Section 5 is still working means it's still catching things. If it is still catching things, we need it."

The Obama administration agrees. In court papers, it argues that Congress was right to pass the latest reauthorization of Section 5 in 2007, saying that the legislation "continued this nation's sacred commitment to eradicating the effects of its darkest days."

Noting the history of discrimination across the country, Justice Department lawyer Edwin S. Kneedler writes, "While progress has been made over the last four decades, Congress in 2006 acknowledged the still painful reality that this blight has not yet been eradicated."

The case will be the most important voting rights case to come before Chief Justice John Robert's court.

At his confirmation hearings, Roberts was confronted with memos he had written as a young Reagan administration lawyer in support of narrowing the Voting Rights Act. During the hearings, he said, "I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships. I was not shaping administration policy."

But as chief justice, Roberts has been skeptical of race-based remedies. In a Texas redistricting case he wrote, "It is a sordid business, this divvying us up by race."

Richard L. Hasen, an election law expert at Loyola Law School, warned Congress in 2006 that the court could eventually strike down provisions of the law unless Congress updated it to take into consideration the law's success. He warned that some justices might not see enough recent evidence of intentional discrimination by states to justify the Justice Department's preclearance role.

"No one knows what would happen if Section 5 suddenly disappeared. It should stand, but it could use some updating," Hasen said.

Concerns About Problems at the Polls for Minorities

Hasen is concerned that the court could find that the problems that do exist with minorities at the polls exist across the nation, not only in the jurisdictions covered by Section 5.

"The court could find less than a justification to single out these jurisdictions for additional scrutiny."

At the time, Hasen proposed a number of steps that would make it easier for some jurisdictions to no longer be subject to these special rules if they could prove they had taken enough steps to prevent racial discrimination in voting in their areas.

Congress declined to follow the recommendations.

"If Congress had followed these steps it would have been more likely that the court would reject arguments against the constitutionality, because the law would be more tailored to modern circumstances," says Hasen.

"That makes it more likely that the court could strike down the act as unconstitutional. Some justice might not see this as an appropriate remedy for today. You have to show that there is real evidence of intentional discrimination. An opinion that strikes down Section 5 could have negative implications for other civil rights laws as well. "

The Supreme Court will rule on the issue by late June.