This Wednesday the Supreme Court will hear a critical Voting Rights Act case. So last Wednesday practicing attorneys and scholars, including one of the lawyers who will argue before the Court, met at the American Enterprise Institute to debate the disputed provision requiring federal pre-approval of certain voting changes.
The challenged provision, Section 5, requires federal clearance on all adjustments to voting practices in nine states and parts of seven others, mostly in the Deep South.
Gregory Coleman, a partner at Texas litigation boutique Yetter, Warden & Coleman who will argue the case for the municipal utility district that is challenging the law, said it’s time to stop second-guessing the officials whom the public trusts to run elections fairly. The federal government sends the message, he said, that “we just presume that your actions will be discriminatory in nature, and we want to look over your shoulder to make sure that you’re behaving.” There are still abuses, he added, but not the kinds of violations that led to the passage of Section 5.
Pointing to the more-than-700 complaints filed by the Justice Department in enforcing the law since 1982, Jon Greenbaum, legal director of the Voting Rights Project at the Lawyers' Committee for Civil Rights Under Law, said the Court has ruled in the past and will rule again to give Congress deference in the matter. “In situations where the change is benign, it’s a very simple process,” he said. “You get pre-clearance. You move on.”
Anne Lewis, a partner at Strickland Brockington Lewis who filed an amicus brief on behalf of Georgia Gov. Sonny Perdue, called the burden of federal scrutiny over every electoral change excessive and unnecessary. Section 5 symbolizes a “badge of racism that certainly the state of Georgia was once entitled to and required to wear,” she said. But the state has changed, she argued, citing statistics on Georgia elections to demonstrate parity in voter registration and turnout between whites and blacks, and to show large increases in the numbers of blacks elected to public office – 611 by 2001 compared with 30 in 1969 – statistics that, she said, Congress failed to consider in its 2006 reauthorization debate. “Congress did not have sufficient evidence that Georgia should still have to wear that badge,” she said.
There has been “remarkable progress” made toward fair elections in places targeted by the law, conceded Kristen Clarke, co-director of the political participation group of the NAACP Legal Defense and Educational Fund. But the progress, she said, is directly attributable to Section 5. In 2006, Congress was convinced that the provision was still necessary when the legislature voted 98-0 to reauthorize the act, she said.
“The statute was unanimous because no one really wanted to touch these issues in a very serious way, even though they obviously disagree beneath the surface,” responded Richard Pildes, a New York University law professor. Members of Congress were loath to change anything in the law for fear of finding their names in the headlines, he argued. Lawmakers could have made it easier to bail out of the statute, limited its scope to fewer types of voting practices, or changed the geographical coverage to target places with more recent patterns of abuses. But when Congress reauthorized the Voting Rights Act for another 25 years without any changes from the 1982 version, Pildes said, it threw “a gauntlet down to the Supreme Court.”
Wednesday, in the high court’s final oral argument of the term, the justices will hear Northwest Austin Municipal Utility District Number One v. Holder.