Scripps Howard Foundation Wire

WASHINGTON – The Supreme Court will consider eliminating a key provision in the Voting Rights Act of 1965, a pivotal piece of legislation that has outlawed discriminatory acts against minority voters for nearly 50 years.

Section 5 of the VRA requires states and localities with a history of racial discrimination to obtain federal approval, or “preclearance,” from the Justice Department or a federal court before making any changes to their voting laws.

During this year’s campaign, federal officials or courts used Section 5 to block voter-ID laws, prohibit reduced early voting periods in Florida and barred a new redistricting map in Texas. Three days after the re-election of President Barack Obama, the Supreme Court agreed to hear the case of Shelby Co., Ala. v. Holder. The case challenges whether Congress’ decision in 2006 to reauthorize Section 5 exceeded its authority under the 14th and 15th Amendments and thus violates the 10th Amendment and Article IV of the U.S. Constitution. Article IV says citizens of one state must be treated the same as those in other states.

“Section 5 served a critical and laudable function 40 years ago, and the court held that it was constitutional then. But Section 5 is not justified now, and its reauthorization in 2006 was not constitutional,” John Neiman, solicitor general for the State of Alabama Attorney General’s Office , said. “Section 5 currently serves only to allow federal bureaucrats to block good-faith and nondiscriminatory changes in state law and to impose unjustified costs on state and local governments.”

For more than 40 years, Congress has been using the same formula to determine which states are covered by Section 5.

The original formula required any state or jurisdiction with a minority turnout of less than half of the national turnout to obtain federal approval before changing voting laws.

States covered under the provision are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Parts of seven states are also covered – Florida, New York, North Carolina, South Dakota, Michigan New Hampshire and California.

Laughlin McDonald, director of the Voting Rights Project at the American Civil Liberties Union, said if the Supreme Court removes Section 5 it would be devastating for minorities. He said there would be retrogression in their voting strengths and additional voting suppression measures.

“After it was first enacted in 1965, Section 5 was extended four times. After every extension it has been challenged as unconstitutional. All of those claims have been rejected. When one looks at the record that Congress has compiled, you would have to conclude there is a continuing need for Section 5 and it’s an appropriate measure to implement the 14th and 15th Amendments,” McDonald said.

Edward Blum, the director of the Project on Fair Representation, brought the suit that will be heard at the Supreme Court, and he disagrees with McDonald.

“Congress reauthorized the Voting Rights Act in 2006 based upon the black voter disenfranchisement in the Deep South that existed in 1965, but those conditions measurably don’t exist anymore,” Blum said. “The America that elected and re-elected Barack Obama as its first African-American president is far different than when the Voting Rights Act was first enacted in 1965. Congress unwisely reauthorized a bill that is stuck in a Jim Crow-era time warp. It is unconstitutional.”

Blum’s group was created to challenge “racial and ethnic classifications” in laws, according to its website, and also is behind Fisher v. Texas, in which a white student claims she was denied admission to the University of Texas over a less-qualified minority student. The Supreme Court heard that case last month.

Christopher Mann, a U.S. elections expert and political science professor at the University of Miami, said each side in the dispute has a clear argument.

“The burden right now under the preclearance provision requires those jurisdictions to show they are not doing anything discriminatory. So the burden of proof lies on the state or county,” Mann said.

But, he said if the court throws out Section 5, “All of the same provisions about fairness and prohibiting discrimination will be in place, but the burden will be on people who believe discrimination is occurring to go to court to show that that there is discrimination.”

The Voting Rights Act is one of the signature legacies of the civil rights struggle. The act ended the use of literacy requirements for voting in seven southern states – Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina and Virginia. The act sparked immediate increases in voter registration by African Americans. The percentage of registered African American adults in Mississippi increased from less than 7 percent to more than 74 percent. In Alabama, the percentage rose from 19 percent to 68 percent.

Ronald Spivey, a professor of African American History at the University of Miami, said the VRA served as an enforcement tool.

“We shouldn’t have needed the Voting Rights Act in the first place after the passage of the 13th , 14th, and 15th Amendments to the Constitution. However, voting rights were still being denied for people of color and continue today. The problem was enforcing the amendments. The Voting Rights Act challenged the South’s efforts to disenfranchise the black vote and made it clear on what states could not do,” Spivey said.

The Supreme Court is expected to hear the case early next year and will likely decide it by the end of June.