US court to hear arguments in voting rights case

February 24, 2013 | By More

WASHINGTON – The U.S. Supreme Court will hear arguments Wednesday in a case challenging a
key provision of the landmark Voting Rights Act of 1965 that was enacted to prevent persistent
discrimination against blacks and other minorities at the polls.

The Voting Rights Act effectively kept close watch, when it comes to holding elections, on
those places with a history of preventing minorities from voting. Any changes, from moving a
polling place to redrawing electoral districts, can’t take effect without approval from the Justice
Department or federal judges in Washington.

It is that strict pre-approval provision that is being challenged in a case brought by Shelby
County, Alabama. The court will hear arguments Wednesday in the case, which is among the
most important of its current term.

The advance approval was adopted in the Voting Rights Act in 1965 to give federal officials a
potent tool to defeat persistent efforts to keep blacks and other minorities from voting.

The provision was a huge success, and Congress periodically has renewed it over the years. The
most recent time was in 2006, when a Republican-led Congress overwhelmingly approved it
and President George W. Bush signed a 25-year extension.

Opponents of the law say they no longer should be forced to live under oversight from
Washington because the country has made enormous racial progress, demonstrated most
recently by the re-election of President Barack Obama, the first black U.S. president. They
object in particular to the 40-year-old formula by which some jurisdictions, most in the Deep
South with a history of racial segregation, are swept under the law and others remain outside
it.

The administration and its allies acknowledge that there has been progress. But they say
minority voters still need the protection the law affords from efforts to reduce their influence
at the polls. Last year, federal judges in two separate cases blocked Texas from putting in place
a voter identification law and congressional redistricting plan because they discriminated
against black and Hispanic residents.

Obama himself talked about the case in a radio interview last week. He told SiriusXM host Joe
Madison that if the law were stripped of its advance approval provision, “it would be hard for
us to catch those things up front to make sure that elections are done in an equitable way.”

Also, the law’s defenders say places that have changed their ways can win release from having
to get Washington’s blessing for election changes. Governments seeking to exit have to
show that they and the smaller jurisdictions within their borders have had a clean record, no
evidence of discrimination in voting, for the past 10 years.

Nearly 250 counties and local jurisdictions have gotten out from the humbling need to get pre-
approval for voting changes through this “bailout provision.” Thousands more could be eligible
based on the absence of recent discriminatory efforts in voting.

The viability of the bailout option could play an outsized role in the Supreme Court’s
consideration of the voting rights law’s prior approval provision, although four years ago,

conservative Justice Clarence Thomas said the prospect of bailing out had been “no more than
a mirage.”

Shelby County has never asked to be freed from the law, but would seem to be ineligible
because one city in the county, Calera, defied the voting rights law and prompted intervention
by President George W. Bush’s Justice Department.

Yet places with a long, well-known history of discrimination probably could find their way out
from under federal monitoring, according to a prominent voting rights lawyer who used to work
for the Justice Department.

“Birmingham, Alabama, where they used to use fire hoses on people, may well be eligible to
bail out,” said the lawyer, Gerry Hebert. Birmingham officials said they’ve never considered
asking.

The Supreme Court made clear its skepticism about the ongoing need for the law when it
heard a similar case in 2009. “Past success alone, however, is not adequate justification to
retain the preclearance requirements,” Chief Justice John Roberts said for the court. That ruling
sidestepped the constitutional issue and instead expanded the ability of states, counties and
local governments to exit the advance approval process.

At that point, so few governments had tried to free themselves from the advance approval
requirement that, in 2009, Thomas said the “promise of a bailout opportunity has, in the great
majority of cases, turned out to be no more than a mirage.”

At the time, Thomas said, only a handful of the 12,000 state, county and local governments
covered by the law had successfully bailed out.

The overall numbers remain low, but the Obama administration argues that “the rate of
successful bailouts has rapidly increased” since the high court last took up the Voting Rights Act
nearly four years ago.

In the past 12 months, 110 local governments have been freed from the requirement to show
in advance that their proposed election changes are not discriminatory. Places that have won
their release from coverage include Prince William County, Virginia, with more than 400,000
residents, and Merced County, California, and its 84 municipalities.

Shelby County says that even with the recent jump in bailouts, “only a tiny percentage” of
governments have found their way out of oversight from Washington.

The advance approval requirement currently applies to the states of Alabama, Alaska,
Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. It also covers
certain counties in California, Florida, New York, North Carolina and South Dakota, and some
local jurisdictions in Michigan and New Hampshire. Coverage has been triggered by past
discrimination not only against blacks, but also against American Indians, Asian-Americans,
Alaskan Natives and Hispanics.

The 10 covered towns in New Hampshire are poised to become the next places to win their
release from the law. An agreement between the Justice Department and the state is awaiting
approval from a federal court in Washington.

Critics of the law contend the Justice Department is highlighting the escape hatch and agreeing
to allow places such as the New Hampshire towns to exit to try to make the entire law look
more palatable to the court.

Alaska Attorney General Michael Geraghty says in his court filing in support of Shelby County
that the Justice Department “commonly agrees to bailouts for jurisdictions that are not legally
entitled to receive them.”

But supporters of the law argue in response that the federal government’s willingness to agree
to free places from the need to get permission shows that the voting rights act is flexible and
helps focus attention on potentially discriminatory voting schemes.

Category: International

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