The Voting Rights Act, first enacted 44 years ago and repeatedly upheld by the Supreme Court since then, is back before the justices again. This time, though, the law is being challenged against the backdrop of a newly elected African-American president.
The provision at issue in Wednesday's case applies to specific jurisdictions where discriminatory practices were once routine. It requires them to get approval from the Justice Department before changing voting procedures. For example, if an Alabama town wants to change polling places or change an elected board to an appointed board, it has to first get permission from the Justice Department.
The provision covers nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. It also covers parts of California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota.
In 2006, Congress held weeks of hearings about this provision and concluded that while progress had been substantial, it wasn't enough to justify allowing the pre-clearance provision to expire. Rep. James Sensenbrenner (R-WI) was chairman of the House Judiciary Committee when it oversaw the extension of the law.
"The Voting Rights Act is the crown jewel of the American civil rights laws passed during the 20th century. Congress recognized that by huge bipartisan votes in both the House and the Senate," Sensenbrenner says.
Indeed, the law passed the Senate 98-0 and the House 390-33. Even members of Congress from covered jurisdictions overwhelmingly voted to extend the law for another 25 years, and President Bush enthusiastically signed it.
But that did not end the controversy. Those now challenging the law see the pre-clearance provision that applies to only 16 states not as a crown jewel but as a scarlet letter.
"It's a scarlet letter that ... declares that these people are not trustworthy to enact fair voting rights laws that will protect everybody's right to vote," says lawyer Gregory Coleman.
Coleman has more than an advocate's interest in this case. He recruited the district that is challenging the law, known officially as Northwest Austin Municipal Utility District Number One and informally as Canyon Creek. Canyon Creek is a small development in Austin, Texas, where there were no houses — or voters — until the 1980s. Now, according to the last census, 3,500 people reside there, and 80 percent of them are white.
The utility district has a five-person elected board that manages a local park and pays down bond debt. The district has never been accused of discrimination. When it wanted to change voting procedures, it easily won approval from the Justice Department, with minimal legal costs of $233.
But Bill Ferguson, chairman of the district board, says, "Frankly, we're a very progressive community, and it's a little bit embarrassing to be subject to this pre-clearance issue when we have no history of discrimination and have done nothing but try to encourage people to vote and to be active in our community."
There is a bailout provision in the Voting Rights Act for localities that can prove 10-year compliance, but it applies only to states and counties. So the lower courts have ruled that this little Texas district would have to get Travis County, where it is located, to seek a bailout. Travis County doesn't want to bail out of the Voting Rights Act, so opponents say the bailout provision is an empty promise.
Mississippi, North Carolina, Arizona, California, Louisiana and New York — all covered by the law in whole or part — have filed briefs in the Supreme Court urging the justices to uphold the law. They say it is a model of efficiency, swiftness and low-cost compliance.
Only Georgia and Alabama have weighed in opposition to the law. They say that in a new century, when the nation has just elected its first African-American president, there is no need for a law based on a formula Congress drew up 25 years ago.
"There's no longer any justification for keeping in place a legal scheme that essentially declares that people in one part of the country — state and local officials — cannot be trusted to enact fair voting laws," Coleman says.
Voting Rights Act supporters say the law is still needed. They note, for example, that in many places with long histories of discrimination, voting is still polarized along racial lines. In Alabama and Mississippi, fewer than 11 percent of white voters supported Barack Obama.
Stanford law professor Pam Karlan says, "Saying 'Let's get rid of the Voting Rights Act' is a little bit like saying 'The doctor put some stitches in so you're not bleeding anymore, let's just rip the stitches out.'"
Nonsense, says Coleman, who notes that the Justice Department blocked voting changes in less than 1 percent of the places that sought pre-clearance.
"[You] have such a minuscule rate of objections that the declaration that state and local officials are presumptively not to be trusted in this area simply cannot be borne out," he says.
But supporters of the Voting Rights Act reply that the whole point of the pre-clearance provision is to prevent attempts to discriminate. They pointed to hundreds of examples — more than 100 in Texas alone — in which the pre-clearance provision prevented elaborate schemes to suppress minority voting.
In one county they cite, it took decades for students at the historically black college there to win the right to vote. Then in 2004, county commissioners — aware that students would be on break during the primary election — voted to reduce early voting dramatically. The county abandoned this effort only after the NAACP complained to the Justice Department to see if the provision had been pre-cleared.
John Payton of the NAACP Legal Defense Fund says that without pre-clearance, the door would be opened for such schemes.
"Not only would we see all of these hundreds of proposed changes come into existence, we'd see others come out of the woodwork that would in fact infect and pervert our democracy," he says.
But Coleman and his allies will tell the justices Wednesday that the Voting Rights Act is an affront to state and local sovereignty and the right of localities to conduct elections. It is, he maintains, a divisive law not authorized by the Constitution.
"The way it has been done locks us into the past. The way it's being justified is, 'Well, you have a history of discrimination, so we're going to continue to presume that you cannot enact a fair voting law,'" Coleman says.
Payton agrees that much progress has been made, but not enough to abandon the pre-clearance section of the Voting Rights Act, known as Section 5. He notes that the nation amended the Constitution after the Civil War to protect the rights of the newly freed slaves.
"It says specifically with respect to racial discrimination in voting, Congress has the power to do appropriate things to make sure we don't have it. And that's what Section 5 is," Payton says.
All of these arguments will play out before the Supreme Court on Wednesday, as they have in the past. But this time, there are new and more conservative justices on the court.
As a young lawyer for the Reagan administration, Chief Justice John Roberts spearheaded an effort to prevent expansion of the Voting Rights law and even opposed the extension that President Reagan eventually signed. As chief justice, he has also been critical of the act, declaring in one opinion, "It is a sordid business, this divvying up by race."