Justices to Hear Challenge to Anti-Bias Law
No States Subject to Voting Rights Act's Provision Oppose It

By Robert Barnes
Washington Post Staff Writer
Wednesday, April 29, 2009

Conservative legal activists who mean to liberate the mostly Southern states that bear the biggest burden under the Voting Rights Act lack support from a key group:

The mostly Southern states that bear the biggest burden under the Voting Rights Act.

The Supreme Court will hear arguments this morning in one of its biggest cases of the year, a suit that seeks to declare unconstitutional a key provision of the voting act. It is considered the most severe federal intrusion on state autonomy, but none of the states subject to it has joined the fight.

The closest has been Georgia Gov. Sonny Perdue (R), whose personal brief supporting the challenge was filed by a private lawyer because the state's attorney general refused to do it. Alabama filed a brief frankly acknowledging its racist past and touting its racial progress but stopped short of advising the court what to do.

However, two of the nine states that must abide by the act's directive -- requiring that even the smallest change in their voting laws or procedures must be preapproved by federal authorities -- lined up with the government in defending the law. They were joined by four other states where some jurisdictions are covered by that requirement.

The states "recognize that Section 5 of the Voting Rights Act has allowed our nation to make substantial progress toward eliminating voting discrimination," said the brief filed by Mississippi, Louisiana, North Carolina, California, Arizona and New York. "More, however, remains to be done."

The law's acceptance reflects both its powerful symbolic resonance and the practical fact that both major political parties have found ways to use it to their advantage. When Congress in 2006 extended for 25 years what had been passed in 1965 as a temporary emergency remedy, only a handful of representatives and no senators objected. President George W. Bush signed the extension in time to tout it at an appearance before the NAACP.

"There's been an adaptation to the Voting Rights Act; it's now baked in the cake," said Emory University political scientist Merle Black, an expert on Southern politics. "It's hugely important for the Democratic Party, and [opposing it] is a no-win issue for Republicans."

Both major political parties have found ways to incorporate the Voting Rights Act into redistricting decisions that benefit them. The byproduct of drawing districts that contain enough minorities to ensure a victory for a Democratic African American, for instance, is the creation of suburban, white and conservative districts that are key to Republican congressional success.

The case before the court was not filed on behalf of a state, or even a county or city, but by a tiny municipal utility district in a neighborhood of Austin. The Northwest Austin Municipal Utility District Number One agreed to be the test case for a challenge filed by its lawyer, Gregory S. Coleman, who will be arguing the second of two major cases this session involving government policies on race.

Last week, he represented white firefighters from New Haven, Conn., who say the city threw out the results of promotion tests because no African Americans qualified.

Coleman, a quiet and unflappable litigator who once clerked for Justice Clarence Thomas, said in an interview that the states' reluctance to step into the fight should not be seen as a belief that Section 5 is warranted. "The states have many partisan reasons" for not contesting their inclusion, he said.

Coleman's brief argues that the provision "imposes a scarlet letter on residents of covered jurisdictions based on acts of their grandparents or -- given our mobile society -- other people's grandparents."

But it is notable that neither Texas's governor nor attorney general, both Republicans, have joined in the fiery rhetoric. Travis County, where Austin is located, urged the court to uphold the act, saying its officials use it "every election cycle to help tamp down or eliminate the insidious influence of racial discrimination."

Virginia might seem in the best position to argue the restrictions are no longer warranted. It was the first state in the union to elect an African American governor and last year, was the only one of the fully covered states to support Barack Obama for president.

But Attorney General William Mims, elected to his post by the General Assembly in February, said there was no movement from legislators or the commonwealth's elected officials to get involved in the court case, and his office came down somewhere in the middle.

"We would prefer not to be under the pre-clearance provision for another 25 years," he said. But, he added, "we had a consensus in our office that it is a constitutional exercise of Congress."

The brief by Perdue details Georgia's progress, in both voter participation by blacks and the election of African Americans. Four of the state's 13 House members are black, as are three of the seven members of the state Supreme Court.

But Perdue's brief states: "No matter what evidence of progress is adduced, there simply will never be enough evidence to allow covered jurisdictions to take off the Section 5 badge of racism. In short, once a racist state, always a racist state."

Although opponents of the law point to Obama's election as a sign that it is no longer needed, racially polarized voting was evident in the covered states. Ten percent of white Alabamians voted for Obama, compared with 48 percent in states not covered by the provision.

Those who defend the act say progress is a direct result of the legislation. The Texas branch of the NAACP, which intervened in the case, said the argument from the other side is that the law should be reauthorized only if conditions "were substantially the same now as they were in 1965."

"Put differently," their brief argues, Congress could require the law "only if the legislation has been ineffective."

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