Justices Hear Voting Rights Case

By Jerry Markon
Washington Post Staff Writer
Wednesday, October 15, 2008

The Supreme Court yesterday took up a proposed expansion of minorities' ability to file lawsuits under the Voting Rights Act, the first of two important voting rights cases the court could hear this term.

The debate yesterday centered on "coalition" political districts, where minority voters make up less than 50 percent of the population but elect minority candidates with support from some white voters. A North Carolina court had ruled, as numerous other courts have, that an important section of the 1965 Voting Rights Act that prohibits diluting minority power through redistricting decisions does not apply to such districts.

North Carolina officials, acknowledging their state's history of racial discrimination, are asking the Supreme Court to overturn the rulings, a decision that would allow lawsuits challenging "dilution" of minority voting strength in coalition areas.

The court's decision will affect the redrawing of political lines after the 2010 census and is of particular concern to civil rights leaders and the Congressional Black Caucus. Nearly half of the caucus's members were elected from coalition districts, and some worry that redistricting could threaten them or future black candidates if states do not fear lawsuits over reapportionment decisions.

If yesterday's oral argument is any indication, the court may be moving in a different direction. Several conservative justices indicated support for maintaining the "50 percent rule" supported by most lower courts -- that vote-dilution lawsuits can be filed only when minorities can show that they would constitute more than half the population if the district in question were redrawn again.

Justice Antonin Scalia said North Carolina's position would lead to more litigation and "inject" the courts "into this very political game much more frequently than we now are."

Chief Justice John G. Roberts Jr. said the success of coalition districts in electing black candidates "would be evidence that the Voting Rights Act has succeeded, rather than evidence that you need to apply it more broadly."

Justice Anthony M. Kennedy, often the deciding vote when the court splits along ideological lines, sarcastically referred to coalition districts as a "brave new world" where "race is the key factor" in drawing political lines.

The case could be a warm-up for an even more significant minority-voting-rights debate to come.

The court is considering whether to hear a challenge to the Voting Rights Act's core "preclearance" provision, which requires some states to obtain federal approval before implementing new voting procedures. A congressionally approved 25-year extension of that provision was signed into law in 2006 by President Bush.

Taken together, the cases would help shape the emerging impact of the 3-year-old Roberts court on the landmark Voting Rights Act, which was enacted at the height of the civil rights movement and outlawed practices, such as poll taxes, used in many Southern jurisdictions to reduce black voter turnout.

Civil rights leaders worry that the increasingly conservative court could hasten a trend, begun under former chief justice William H. Rehnquist, of interpreting the act's protections more narrowly. "There is concern whether the court will take an activist approach to restrict the scope of the Voting Rights Act," said Robert Kengle, senior counsel for litigation at the Lawyers' Committee for Civil Rights Under Law and a former top voting rights official at the Justice Department.

But some conservative legal groups argue that that is the proper approach. The North Carolina plan to extend legal protection to coalition districts would amount to "granting racial preferences," not to remedy discrimination but to help elect a particular political party, the Pacific Legal Foundation argued in a brief filed with the Supreme Court.

Yesterday's case arose out of a North Carolina redistricting plan designed to elect blacks to the state legislature in an area that the state acknowledges has a history of racial discrimination. Some residents of Pender County, a rural area named for a Confederate general, sued to stop the plan, arguing that it violated a state constitutional provision against splitting county lines during redistricting.

The case broadened when the state said it had to split county lines to avoid a Voting Rights Act lawsuit. The residents responded that such a claim was not possible because the new coalition political district is only 43 percent black -- and most courts have found that such cases can be brought only when minorities constitute a majority.

In an interview, Rep. Melvin Watt (D-N.C.), a black congressman who has been reelected with white support, said the Supreme Court should side with North Carolina. All 42 House members of the Congressional Black Caucus filed a brief in the case. Sen. Barack Obama (Ill.), the Democratic presidential candidate and the only black U.S. senator, did not sign the brief because, Watt said, Senate seats are elected statewide and not subject to redistricting.

"If the court goes the wrong way, it could substantially undermine the Voting Rights Act," Watt said.

© 2008 The Washington Post Company