Case could end requirement for states with history of discriminatory policies to get federal approval for election laws
An Alabama county goes to the US supreme court on Wednesday in an attempt to overturn an historic piece of national civil rights legislation protecting the voting rights of African Americans and other minorities.
The challenge to the 1965 Voting Rights Act is part of a broader legal onslaught by conservatives against half a century of civil rights laws that Republicans argue are outdated because they have been successful at ending systematic discrimination. But liberal supporters of the protections say a series of court battles between conservative states and the federal government in recent years is evidence that the legislation is far from redundant.
Wednesday’s case centres on a provision of the Voting Rights Act, known as Section 5, which requires states with a history of policies that diminish the power of the African American vote to seek US Justice Department approval for changes to election laws or procedures, known as “pre-clearance”.
The Justice Department has repeatedly invoked the law to prevent states such as Texas, Florida and South Carolina from redrawing electoral boundaries in ways that disadvantage minorities and several states from imposing stringent identification requirements in order to vote – measures struck down in federal court as intentionally discriminatory. Alabama alone has had more than 200 discriminatory voting laws and practices blocked over the past 30 years.
Shelby county’s legal action is being funded by the Project on Fair Representation. Its director, Edward Blum, describes Section 5 as “a draconian yet completely necessary provision in 1965 when mostly southern jurisdictions were purposely shutting out blacks from the ballot box”.
But he says the legislation has achieved its purpose because African Americans and Hispanics now wield considerable political power which negates the need for special protection for minority voters, and that the continued use of Section 5 is now imposing discrimination against white people.
Supporters of the measure are dismissive of conservative attempts to say they want the supreme court to strike the law down on the grounds of protecting individual rights. Groups such as the National Association for the Advancement of Colored People (NAACP) legal defence fund say the real motive is to chip away at civil rights legislation in order to undermine the political power of minorities.
Tom Perez, head of the Justice Department’s civil rights division which has been revitalised under Barack Obama after being sidelined by the Bush administration, on Tuesday said the fact that the Justice Department still finds it necessary to invoke Section 5 is evidence of its continued necessity.
“Section 5, regrettably, continues to be very necessary,” he told the Huffington Post. “Texas is one of a number of examples why its necessary and the law is not over-inclusive.”
Nine states – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – are required to seek federal approval for changes to voting laws or procedures. Some parts of other states are also bound by the requirement.
Congress has repeatedly extended the act, most recently in 2006. But some Republicans are optimistic that the court will strike down Section 5 and other long standing civil rights legislation because of its ideological tilt to the right. The chief justice, John Roberts, has said he is deeply sceptical about racially based legislation.
In 2009, Roberts invited a challenge to the clause in the law giving Washington oversight, known as Section 5, by saying that “the south has changed”.
“The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for pre-clearance. 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,” Roberts wrote.
But supporters of the legislation are attempting to appeal to the court’s conservatives, particularly Justice Antonin Scalia, by pointing to the 15th amendment of the constitution which says that the right to vote “shall not be abridged” because of race and that Congress has “the power to enforce this article by appropriate legislation”.
The ground for the supreme court case was laid by a series of victories for the Obama administration in federal courts in recent months.
Judges in Washington DC have struck down attempts by Texas to redraw constituencies because the move diminished the impact of a rapidly growing Latino vote and to require photo identification at the polls, which the court said would discourage minorities from voting. The federal courts effectively accused Texas’s Republican-controlled legislature of racial discrimination and attempting to manipulate elections.