Policy: Law

Supreme Court expected to rule soon on constitutionality of Voting Rights Act

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Politics,Judicial Branch,Supreme Court,Voter Registration,Sean Lengell,Constitutionality,Law

Sean lengell Congressional Correspondent

The Supreme Court is expected by the end of the month to announce its ruling on a case that could end a landmark Civil Rights-era law designed to combat discriminatory voting practices nationwide.

All or parts of 16 states, mostly in the South, currently must receive approval from the Justice Department or a federal court before making changes in the way they hold elections. The provision is part of the 1965 Voting Rights Act -- enacted to stop Jim Crowe-era practices such as literacy tests, poll taxes or other measures designed to keep blacks from voting.

But Shelby County, Ala., is challenging the constitutionality of the advance approval, or "preclearance" requirement, saying it no longer should be forced to live under oversight from Washington because it has made significant progress in combating voter discrimination.

The county -- a mostly white suburb of Birmingham -- also argues that preclearance is an encroachment on state sovereignty.

"The South has changed," Bert Rein, an attorney representing Shelby County, told the Supreme Court during oral arguments on the case in February.

And county Attorney Frank C. Ellis Jr., has said voter discrimination today is no worse in jurisdictions under preclearance than those outside the law's reach.

"We are a different and better nation today, so it is only right that our federal laws should treat each of the 50 states equally," Ellis said after the oral arguments.

But supporters of preclearance say it has been among the nation's most effective tools to eradicate racial discrimination in voting. And without it, they say states might seek to reinstate or push a new wave of discriminatory voting measures previously blocked or deterred by the law.

"This critical tool stops discriminatory election changes before they can harm voters by requiring jurisdictions covered by [the law] to demonstrate that their proposed voting changes do not have a racially discriminatory intent or effect," said a report released last week by Brennan Center for Justice at the New York University School of Law.

The high court's decision -- whether it upholds, strikes down or suggests changes in the law-- poses broad-reaching consequences, as it would set legal precedents that could affect jurisdictions under preclearance nationwide.

Congress has reauthorized the Voting Rights Act several times, most recently for another 25 years in 2006 with broad bipartisan majorities in both chambers -- a point supporters say proves the law still isn't outdated.

Senate Majority Leader Harry Reid, D-Nevada, as well as a bipartisan group of lawmakers from the House Judiciary Committee and others, have filed briefs supporting the law with the Supreme Court.

Justice Antonin Scalia controversially suggested Congress reauthorized the law in 2006 only out of fear of being labeled racist if lawmakers opposed it.

"I don't think [Congress' renewal of the law is] attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement," he said during oral arguments.

Many liberals called the justice's comments offensive.

During oral arguments, conservative and liberal-leaning justices engaged in brusque back-and-forth discussions, prompting many court watchers to predict a 5-4 decision.

Justice Anthony M. Kennedy is considered the swing vote on the case, thought it's difficult to gauge which way he will vote. He has suggested preclearance has been a success, though he hinted it may have outlived its usefulness by saying "times change."

The high court also is expected to rule by the end of the current session on another voting rights-related case -- an Arizona law that requires voters to submit proof of citizenship when registering to vote.

Defenders of the citizenship requirement say it's a valuable tool to combat voter fraud. But the law's critics say it imposes an unfair burden on residents and threatens to disenfranchise minorities, the poor and others.

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Sean Lengell

Congressional Correspondent
The Washington Examiner