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State Officials Divided on Challenge to Voting Rights Act

1:13 PM, Feb 22, 2013   |    comments
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By Mary Orndorff Troyan and Deborah Barfield Berry, Gannett Washington Bureau

WASHINGTON - Aggressive enforcement of the 1965 Voting Rights Act transformed American politics, especially in the South, by making sure minorities had a clear path to the ballot box and an equal shot at public service.

Forty-eight years later, after the re-election of an African-American president, the heart of that law is on trial.

The Supreme Court will hear oral arguments Feb. 27 in a case that is sure to ignite a national debate over how far the country has progressed on racial issues and whether minority voters still need extra protection.

State officials in South Carolina, where one of the first challenges to the Voting Right Act originated in the 1960s, are split in how they see the most recent case.

The case began when Shelby County, Ala., opposed by the Justice Department and civil rights groups, asked courts to declare two key sections of the Voting Rights Act unconstitutional.

Section 5 bars election officials in jurisdictions with a history of discrimination, including South Carolina, from changing their voting procedures unless they first prove the changes won't hurt minorities. Section 4b uses a formula to determine which states, counties and municipalities are subject to Section 5.

Shelby County says the provisions are outmoded and unfair to parts of the country that have transcended their discriminatory pasts.

Civil rights groups counter that the provisions are the best defense against a return to the days when racism permeated election procedures in many parts of the country, particularly the South.

"This idea that we can stop with the job half done and see how it works out - that is not meeting the promise and possibility of the Constitution," said Debo Adegbile, counsel to the NAACP Legal Defense Fund and a lawyer in the case.

South Carolina Attorney General Alan Wilson is backing Shelby County. He said it's unfair that other states have been allowed to pass new voter identification laws without interference from the Justice Department, but it took a trial and $3.5 million in state money to defend South Carolina's version in court last year.

"We are held hostage by an outdated law," Wilson said.
Exercising their authority under Section 5 of the Voting Rights Act, Justice Department officials rejected South Carolina's voter ID law, saying it could have a discriminatory impact on minority voters.

The state sued. The law was later approved after an agreement that lessened its impact on minorities.

South Carolina has joined Arizona, Georgia and South Dakota in asking the Supreme Court to declare Section 5 unconstitutional in the Shelby County case.

"Section 5 was an important and necessary part of the effort to end voter discrimination in this country, but has now outlived its purpose," attorneys general from the four states wrote in court papers.

Others in South Carolina say Section 5 is still relevant and necessary.

The outcome of the trial over the state's voter ID law proves that point, according to the League of Women Voters of South Carolina and a handful of Democratic state lawmakers - state Sens. Bradley Hutto, Gerald Malloy and John Scott Jr., and state Rep. Gilda Cobb-Hunter.

"South Carolina's recent experience shows that the effects of Section 5, in actual practice, are not so great or unmanageable as (Shelby County) claims, and are more than outweighed by the Constitution's demand that racial discrimination in voting be eradicated," the state lawmakers and league members wrote in court papers backing the Justice Department.

The department has lodged Section 5 objections to proposed election-related changes in South Carolina 122 times since 1972 and 11 times since 2000.

Previous attempts to gut the Voting Rights Act have failed, and in 2006, Congress extended the law for 25 years.
But in 2009, the Supreme Court questioned whether the law's "current burdens" were justified by "current needs," essentially inviting another attempt to overturn it.

"Congress unwisely reauthorized a bill that is stuck in a Jim Crow-era time warp," said Edward Blum, director of the Project on Fair Representation, which is financing Shelby County's challenge to the Voting Rights Act.

The county is in a predominantly white and heavily Republican area south of Birmingham and north of Selma, geographically close to the origins of the civil rights movement.

Alabama is one of nine states fully covered by Section 5 because of its history of discrimination. The section also covers parts of seven states.

"Section 5 is Alabama's gift to democracy," Adegbile said. "People stood in harm's way to make sure the promise in the Constitution was kept. In that way, it is a gift to the nation."

Since 1982, the Voting Rights Act has blocked 2,400 voting changes that federal officials found discriminatory. Some of those changes were part of recent, high-profile cases involving voter identification and statewide redistricting.

"There is too much evidence that they don't police themselves," Nina Perales, vice president of litigation with the Mexican American Legal Defense and Educational Fund, said of states subject to Section 5 restrictions.

But there has been progress.

The 1965 law successfully eliminated poll taxes, literacy tests and other tactics created to discourage blacks from voting. And it boosted black voter turnout and the number of black elected officials.

Shelby County and its allies cite those trends in arguing that Section 5 states, counties and municipalities should no longer be punished for the sins of their grandfathers.

Justice Department officials objected to more than 14 percent of all election changes submitted under Section 5 between 1965 and 1974. From 1982 to 2004, the agency objected to fewer than 1 percent.

"That difference is massive," lawyers for Shelby County wrote in court papers. "At most, the 2006 legislative record shows scattered and limited interference with voting rights, a level plainly insufficient to sustain Section 5 pre-clearance."

Shelby County also says Section 2 of the Voting Rights Act, which allows people to sue if they feel their rights have been threatened, is a sufficient deterrent.

But Section 2 doesn't block discrimination before it happens, as Section 5 does, civil rights activists say. And Section 5 puts the burden on local governments to prove elections are fair.

"That is the incredible power of Section 5 and why it's so important to us,'' said Barbara Arnwine, executive director of the Lawyers' Committee for Civil Rights Under Law. "That is a conscious question among African-American voters: How protected am I?"

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