MICHELE NORRIS, host:
The landmark 1965 Voting Rights Act has been the law of the land for nearly half a century, but at least one of its key provisions remains controversial. The law requires the Justice Department to pre-approve changes made to election laws in states with a history of racial discrimination. Many conservatives say any need for the law has long since passed.
This month, a federal appeals court allowed a constitutional challenge to the pre-approval language to move forward.
NPR's Carrie Johnson has the story.
CARRIE JOHNSON: Congress passed the Voting Rights Act to get rid of barriers for black voters in the South. Back then, lawmakers didn't trust state officials in areas with a history of racial discrimination, so they banned poll taxes and literacy tests.
They also gave the U.S. Justice Department the authority to review redistricting plans and other election changes before they took effect.
It's a power that rankles many of today's conservatives. Hans von Spakovsky is one of them.
Mr. HANS VON SPAKOVSKY (Former Member, Federal Election Commission): You have the federal government having to approve things that are - laws and ordinances that are passed by the local governments and state governments. You don't see that in any other area.
JOHNSON: Von Spakovsky, a Justice Department official under President George W. Bush, says parts of 16 states, most of them in the South, are covered by the law today based on data gathered in the 1960s.
Mr. VON SPAKOVSKY: This was needed in 1965, 'cause in 1965 there was systematic, widespread discrimination in the South against black voters. But there's no one that can show that there's anything like that today.
JOHNSON: Chief Justice John Roberts also raised doubts about the Justice Department's pre-approval authority under Section 5 of the Voting Rights Act in a Supreme Court ruling a couple of years ago. The high court didn't rule on the issue directly in that case.
But since then, lawyers have been looking for another way to present the question. And thanks to a recent lower court ruling, they may have found it.
Earlier this month, a federal appeals court in D.C. allowed a Republican candidate in the small town of Kinston, North Carolina to move forward with his lawsuit challenging the federal government's power to force its decisions on the states.
Rick Hasen studies election law at the University of California in Irvine.
Professor RICK HASEN (Election Law, U.C. Irvine Law School): The Voting Rights Act has been a crown jewel of the Civil Rights Movement, and for the court to say that Congress doesn't have the power to step in and require this kind of federal review of voting rules would be a dramatic shift in how the court views the federal-state balance.
JOHNSON: But election lawyers like Gerry Hebert say the threat of a Supreme Court case is already making a difference.
Mr. GERRY HEBERT (Attorney): Many of us feel that the Justice Department is too concerned with the fact that the Supreme Court will strike down the act and so, maybe doesn't enforce it as vigorously as it should because it's concerned that if it is accused of overreaching, that the Roberts' Court will strike the act down.
JOHNSON: For the last several years, experts say the Justice Department has approved the vast majority of voting changes it reviews under the preclearance rules. So far this year, it's given a green light to elections changes in Louisiana and Virginia.
But most of the state and local redistricting plans, more than 2,000 in the covered areas, haven't arrived on the department's doorstep.
Election law professor Rick Hasen says he'll be watching.
Prof. HASEN: This is the first time that a Democratic administration will be in charge of the Department of Justice during one of these redistricting periods, putting aside the Johnson administration.
JOHNSON: Supporters of the Voting Rights Act say the law and the Justice Department still play an important role in protecting minority voters. And Congress seemed to agree back in 2006, when it renewed the Voting Rights Act and the pre-approval process for another 25 years.
As the North Carolina case makes its way toward the Supreme Court, it becomes likely the future of the law will be determined by the courts.
Carrie Johnson, NPR News, Washington.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.