LDF lawyer Debo Adegbile
By Pete Williams,
NBC News Justice
Before the current U.S. Supreme Court term ends in late June, the justices will decide the fate of the most potent part of a law widely considered the most important piece of civil rights legislation ever passed by Congress ― the Voting Rights Act of 1965.
If the court were to strike down part of the law, which it has signaled a willingness to do in the past, it would dramatically reduce the federal government’s role in overseeing voter discrimination in a wide swath of the nation.
The U.S. Supreme Court prepares to enter June with the term’s biggest cases yet to be decided. NBC’s Pete Williams looks at what’s left on the docket.
Signed by President Lyndon Johnson and renewed by Congress four times since then, most recently in 2006, a key provision requires states with a history of discrimination at the polls to get federal permission before making adjustments to their election procedures.
The requirement applies to major changes, such as redrawing congressional district boundaries, and minor ones, like moving the locations of polling places. The law was at the core of the legal battles last year that blocked strict new voter ID laws in Texas and South Carolina.
Under the pre-clearance requirement, nine entire states, 12 cities and 57 counties elsewhere are presumed to be acting improperly whenever they seek election changes. They must get permission from either the Justice Department or a special panel of three federal judges.
Shelby County, Ala., is urging the Supreme Court to strike down two provisions of the Voting Rights Act ― the pre-clearance requirement and the map of covered jurisdictions.
“This is based on criteria that came from the 1964 presidential election. It’s 47, 48 years old,” says Frank “Butch” Ellis, the Shelby County attorney.
“The South has changed in that 48 years. It’s not current. It’s not relevant anymore,” he says.
The areas covered by the law, Shelby County argues, include localities that have made substantial reforms but miss other parts of the nation that have failed to root out discrimination at the polls.
Four years ago, the Supreme Court narrowly rejected a challenge to the pre-clearance requirement. But the court’s decision strongly suggested that several justices had doubts about the law’s constitutionality, given recent electoral reforms. “Things have changed in the South,” said the 2009 majority opinion. “Blatantly discriminatory evasions of federal decrees are rare.”
The NAACP Legal Defense and Education Fund (LDF) says the current map is a close enough fit to cover the areas of greatest concern. “Congress is not a surgeon with a scalpel when it acts to legislate across the 50 states. But it can reasonably attack discrimination where it finds it,” the group says.
When the court heard the case in February, LDF lawyer Debo Adegbile conceded that the South has made progress. “But some things remain stubbornly the same, and the sustained effort to deny African-Americans the franchise is part of Alabama’s history to this very day,” he said.
The Supreme Court’s more liberal members noted that most voter discrimination lawsuits come from areas in the 16 states covered in whole or in part by the law. “The formula seems to be working pretty well in terms of going after the actual violations on the ground and who’s committing them,” said Justice Elena Kagan.
But the court’s conservatives said Congress failed to consider the most up-to-date evidence when it last renewed the law in 2006. “Is it the government’s submission that the citizens in the South are more racist than the citizens in the North?” asked Chief Justice John Roberts.
If the court strikes down the challenged parts of the law, the remainder of the Voting Rights Act would remain in effect, including provisions that allow civil rights groups to challenge election changes one-by-one. But that is a less effective strategy, they say.
Using those lawsuits, by themselves, “continues to be an inadequate remedy to address the problem of these successive violations,” Adegbile said.