Justices Will Hear Challenge to Voting Rights Act

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.

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.

Coleman, a politically active lawyer who once clerked for Justice Clarence Thomas, testified to Congress in opposition to extending the Voting Rights Act in 2006. He recruited Northwest Austin Municipal Utility District No. 1 for a test case after Congress extended the law for another 25 years.

The legislation has reached such iconic status that its extension was renamed for legends of the civil rights movement: It is the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.

The Senate passed the reauthorization unanimously, and the House had only 33 dissenting votes. President Bush signed the legislation, saying, "A generation of Americans that has grown up in the last few decades may not appreciate what this act has meant."

Even then, though, some Southern Republicans virtually invited a challenge, because of the length of the extension and because Congress did not reexamine which jurisdictions should be included in the legislation.

A special panel of three judges upheld the 2006 reauthorization, saying the "extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions" justified Congress's action. It said the progress noted by challengers "is due in no small part to the Voting Rights Act itself."

The panel, in a comprehensive, 121-page decision written by Judge David S. Tatel of the U.S. Court of Appeals for the District of Columbia Circuit, said the proper way to judge Congress's actions was under a 1966 Supreme Court ruling that requires lawmakers only to show that the law was a "rational" response to the problem of voting discrimination.

But Tatel said Congress also met a more restrictive standard that the court articulated in 1997, requiring "congruence and proportionality" to the problem at hand.

Hasen, who advocated the extension of the law, said the case "will be the first chance to see Justice Roberts address the question of race and politics head-on."

As a Justice Department lawyer in the 1980s, Roberts wrote a memo opposing an extension of the act, although he said at his Supreme Court confirmation hearings that he merely had been stating the position of the Reagan administration.

But in his short tenure on the court, Roberts has shown himself to be a pithy critic of race-based policies. "It is a sordid business, this divvying us up by race," he wrote in a 2006 redistricting decision.

In a 2007 majority opinion limiting the use of racial classifications by school systems trying to promote desegregated classrooms, he wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

In the firefighter case, 19 white officers and one Hispanic sued New Haven after the city threw out a promotion exam because too few minorities scored high enough to merit moving up.

The firefighters said it was not fair that they would lose promotions simply because minorities did not score well on the test.

But city officials said their actions were justified because of fear that the test was biased against African Americans, and that they could be sued for using it to justify the promotions.

The cases are Northwest Austin Municipal Utility District Number One v. Mukasey and Ricci v. DeStefano, and they are likely to be argued in April.

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