RENEE MONTAGNE, host:
The Voting Rights Act is back before the Supreme Court today. The law was enacted 44 years ago and repeatedly upheld by the high court. This time, though, the nation has its first African-American president, and those challenging the law say Congress no longer has any justification for intruding on state and local elections.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: The provision at issue in today'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. So, for example, if an Alabama town wants to change polling places or change an elected board to an appointed board, it has to get permission first from the Justice Department.
The provision covers all of nine states - mainly in the Deep South - plus Arizona, Alaska and Texas. It also covers parts of seven states, among them, New York and California.
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. Republican Congressman James Sensenbrenner was chairman of the House Judiciary Committee who oversaw extension of the law.
Representative JAMES SENSENBRENNER (Republican, Wisconsin): The Voting Rights Act is the crown jewel of American civil rights laws passed during the 20th century. Congress recognized that on a huge bipartisan vote in both the House and the Senate.
TOTENBERG: Indeed, the law passed the Senate by 98 to nothing 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, and those challenging the law today see the pre-clearance provision that applies to only 16 states not as a crown jewel, but as a scarlet letter. Lawyer Gregory Coleman.
Mr. GREGORY COLEMAN (Lawyer): 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.
TOTENBERG: Coleman has more than an advocate's interest in this case. He recruited the district thats challenging the law, known officially as Northwest Austin Municipal Utility District Number One, and informally as Canyon Creek. Its a small development in Austin, Texas, where, until the 1980s, there were no houses or voters, and where there are now 3,500 people -80 percent of them white, according to the last census.
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, and when it wanted to change voting procedures, it easily won approval from the Justice Department, with minimal legal costs of $233.
But as the chairman of the district board, Bill Ferguson, puts it
Mr. BILL FERGUSON (Chairman, District Board, Canyon Creek, Texas): 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.
TOTENBERG: 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 the county its in - Travis County - to seek a bailout. And Travis County doesn't want to bail out of the Voting Rights Act. So opponents say the bailout provision is an empty promise.
The states of North Carolina, Arizona, California, Louisiana, Mississippi 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 its a model of efficiency and swiftness and low-cost compliance.
Only Georgia and Alabama have weighed in as critics of the law. Opponents say that in a new century, when the nation has just elected its first African-American president, theres no need for a law based on a formula Congress drew up 25 years ago.
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. Then in Alabama and Mississippi, fewer than 11 percent of white voters supported Barack Obama. Stanford law Professor Pam Karlan.
Professor PAM KARLAN (Law, Stanford University): 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.
TOTENBERG: Nonsense, says Mr. Coleman. He notes that the Justice Department blocked voting changes in fewer than 1 percent of the places that sought pre-clearance.
Mr. COLEMAN: That 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.
TOTENBERG: 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 to win the right to vote for students at the historically black college. Then, in 2004, county commissioners - aware that students would be on break during the primary election - voted to reduce early voting dramatically. The county only abandoned this effort 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 argues that without pre-clearance
Mr. JOHN PAYTON (NAACP Legal Defense Fund): 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.
TOTENBERG: But Gregory Coleman and his allies will tell the justices today 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.
Mr. COLEMAN: The way it has been done locks us into the past. The way it's being justified is, you know, well, you have a history of discrimination, so we're going to continue to presume that you cannot enact a fair voting law.
TOTENBERG: The NAACPs John Payton agrees that much progress has been made, but he says 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.
Mr. PAYTON: 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.
TOTENBERG: All of these arguments and more will play out before the Supreme Court today, as they have in the past. But this time, there are new and more conservative justices on the court. Perched at the center of the bench will be the chief justice, John Roberts, who as a young lawyer for the Reagan administration, spearheaded an effort to prevent expansion of the Voting Rights law and even opposed the extension President Reagan eventually signed.
As chief justice, hes also been critical of the act, in one opinion declaring, quote, Its a sordid business, this divvying up by race.
Nina Totenberg, NPR News, Washington.
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