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Supreme Court Will Hear Challenge to Voting Rights Act

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By Robert Barnes
Washington Post Staff Writer
Saturday, January 10, 2009

The Supreme Court agreed yesterday to examine whether a central component of landmark civil rights legislation enacted to protect minority voters is still needed in a nation that has elected an African American president.

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The court will decide the constitutionality of a provision of the Voting Rights Act of 1965 that seeks to protect minority voting rights by requiring a broad set of states and jurisdictions where discrimination was once routine to receive federal approval before altering any of their voting procedures.

The Supreme Court has upheld the requirement in the past, saying the intrusion on state sovereignty is warranted to protect voting rights and eliminate discrimination against minorities. But challengers say it ignores the reality of modern America and "consigns broad swaths of the nation to apparently perpetual federal receivership based on 40-year-old evidence."

"It has the potential to be the most important election-law case this court has heard," said Richard L. Hasen, an elections expert at Loyola Law School in Los Angeles, adding that it raises the possibility that "the remedy that was once constitutional is now unconstitutional."

The case comes to a court, led by Chief Justice John G. Roberts Jr., that has become increasingly skeptical of race-based remedies.

The justices yesterday also accepted another case that will examine the role of race in public life. It concerns a discrimination lawsuit filed by white firefighters in New Haven, Conn., who are challenging the city's decision to throw out a promotion exam because not enough black applicants did well on it.

The Voting Rights Act was enacted in 1965, at a time when literacy tests and other schemes were routinely used, especially in parts of the deep South, to intimidate and exclude black voters. Its Section 5 "pre-clearance" requirements, which compel the Justice Department or a court to sign off on any changes to voting procedures, were intended to last for five years.

Instead, the law was expanded to include other minorities, and its duration was extended four times, most recently in 2006 by overwhelming congressional majorities.

The pre-clearance requirements apply to nine states -- Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia -- as well as counties and towns in seven others. Fifteen jurisdictions in Virginia, including the city of Fairfax, have been allowed to "bail out" of the requirement with the agreement of the federal government.

Challengers say the Section 5 designations are an outrageous "badge of shame" on jurisdictions that have never discriminated, at a time when minorities have been elected to public office in record numbers.

"The America that has elected Barack Obama as its first African-American president is far different than when Section 5 was first enacted in 1965," wrote Gregory S. Coleman, a former Texas solicitor general who brought the suit on behalf of a tiny utilities district in Austin that is covered by the law.

The district was created in the late 1980s to provide sewer services to a new subdivision, and there has never been a charge of discrimination in the way the now-3,500 residents elect their five-member board of directors. But any changes the district makes -- such as moving its elections from a resident's home to a local school -- require Justice Department approval.


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