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Gutting the Voting Rights Act?

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent   |   Nov. 18, 2012 at 3:30 AM   |   Comments

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WASHINGTON, Nov. 18 (UPI) -- Is the conservative-leaning U.S. Supreme Court getting ready to gut the federal Voting Rights Act five decades after it was enacted?

The justices agreed behind closed doors earlier this month to hear the challenge of an Alabama county to Section 5 of the act, a core provision which says all or parts of 16 states, mainly in the South, have to get permission -- or "preclearance" -- from the U.S. Justice Department or a three-judge federal panel in Washington to make any changes in how people vote in their jurisdictions, no matter how innocuous.

At issue is whether Congress exceeded its constitutional authority by re-enacting Section 5 in 2006 -- a "prophylactic" measure that restricts what may be constitutional activity on the chance that it may be unconstitutional activity, and only in venues with a history of suppressing the voting rights of minorities.

The irony of the timing of the high court's action only days after minorities flexed their muscles in the national election was not lost on court watchers.

"Acting three days after the nation's minority voters showed that they have increased and still growing power in U.S. elections," Lyle Denniston wrote in SCOTUSblog, "the Supreme Court agreed on Friday to rule on a challenge to Congress's power to protect those groups' rights at the polls."

An article in The Christian Science Monitor also marked the coincidence -- the justices didn't act in response to the election; they were scheduled to weigh the challenge on that Friday anyway.

"Those who want to put voting affairs back into the exclusive hands of state and local election officials cite President Obama's re-election on Tuesday as a reason to rethink the need for federal oversight of jurisdictions that, 40 or 50 years ago, had engaged in voting discrimination," the article said.

"Of course, Mr. Obama lost in most of the so-called Section 5 districts and states," the article pointed out. "It's in the South, moreover, that the U.S. Department of Justice cited the Voting Rights Act in challenging new voter ID laws in [Voting Rights Act] jurisdictions such as Texas and South Carolina that Attorney General Eric Holder likened to Jim Crow-era 'poll taxes.'"

If the U.S. Supreme Court outlaws Section 5 it would be a major victory for state Republicans who push voter identification laws they say would cut down on widespread fraud. It would be a major defeat for Holder and Democrats who say the voter ID laws are thinly disguised attempts to suppress the legitimate votes of minorities -- the same minorities who provided the margin of victory for President Obama on Election Day.

In 2009, an 8-1 Supreme Court majority in Northwest Austin Utility vs. Holder refused to rule on the constitutionality of Section 5. But Chief Justice John Roberts, writing for the majority, warned that Section 5 was living on borrowed time.

"Things have changed in the South," Roberts wrote. "Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. ...

"These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success," he added. "Past success alone, however, is not adequate justification to retain the preclearance requirements. ... It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the act. But the Act imposes current burdens and must be justified by current needs."

Roberts went on to comment on how states were treated differently.

"The act also differentiates between the states, despite our historic tradition that all the states enjoy 'equal sovereignty,'" he wrote. "Distinctions can be justified in some cases. ... But a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets.

"These federalism concerns are underscored by the argument that the preclearance requirements in one state would be unconstitutional in another. ... The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions."

The petition by Shelby County, Ala., to the high court poses the question: "Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the 15th Amendment and thus violated the 10th Amendment and Article IV of the United States Constitution."

"Article IV and the 10th Amendment reserve to the states the power to regulate elections. Notwithstanding, the 15th Amendment authorizes Congress to enforce against the states that amendment's guarantee of the right to vote free from discrimination on account of race, color or previous condition of servitude," the petition said. "It is this court's duty to ensure that Congress appropriately remedies 15th Amendment violations without usurping the states' sovereign powers. Shelby County asks the court to protect this important federalism interest."

The petition says the county does not challenge Congress' power to ban "literacy tests, poll taxes and other ballot-access restrictions ... used to disenfranchise African-Americans."

Among other things, the petition says, "Placing a jurisdiction in federal receivership raises fundamental questions of state sovereignty; and doing so selectively, absent compelling justification, unconstitutionally departs from the 'historic tradition that all the states enjoy equal sovereignty.' ... In short, Congress' 2006 decision to reauthorize the [Voting Rights Act's] preclearance regime for another 25 years 'raise[s] serious constitutional questions' under any applicable standard."

The 15th Amendment on which the congressional action depends says: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude," and "Congress shall have power to enforce this article by appropriate legislation."

The 10th Amendment, cited by Shelby County, says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Article IV of the Constitution, also cited by Shelby County, says in its relevant part: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." In other words, the right enjoyed by citizens in some states must be enjoyed by citizens in all states.

Holder and the Obama administration see the case quite differently and pose the question to be argued differently. In its own brief unsuccessfully opposing Supreme Court review, the administration said the debate should focus on whether Congress reauthorized Section 5 for 25 years in 2006 "on the basis of an extensive record demonstrating that despite considerable progress under Section 5's remedial framework, discrimination against minority voters continues to be a serious problem in covered jurisdictions and that Section 5 remains a valuable tool in preventing, remedying and deterring such discrimination."

In accepting the challenge for review, the Supreme Court said it would use Shelby County's version of the question at issue.

The administration told the high court Congress had 15,000 pages of background to support the re-enactment of Section 5, and that simply banning discrimination does not prevent ongoing voter bias.

"In fact decades-old forms of gamesmanship that discriminate against minority voters ... were well known to Congress in 1965 and 2006" when Section 5 was enacted and re-enacted for the fourth time. A lower court looking at the challenge "found substantial probative evidence of ongoing constitutional violations that justified Congress' conclusion racial discrimination in voting in covered jurisdictions is so serious and pervasive that section 2 litigation" -- section 2 of the Voting Rights Act bans general discrimination -- "remains an inadequate remedy. ... In particular, the court cited ... 'the numerous' examples of 'flagrant racial discrimination' and overt hostility to black voting power by those who control the electoral process."

The "covered jurisdictions" include Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas, most of Virginia, and bits and pieces elsewhere.

While advocates for both sides file friend-of-the-court briefs, the Supreme Court has not yet set a date to hear argument.

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