As the Supreme Court prepares to take up a landmark challenge to the nation's voting rights laws, a central question looms over the case: Has American politics moved beyond race?
Some argue that Barack Obama's election as the first black president is ample evidence that minority voters no longer need special protections. One of those protections, a key provision of the 1965 Voting Rights Act, is at the heart of Northwest Austin Municipal Utility District Number One v. Holder, or NAMUDNO for short.
"President Obama's election is a symbol of the change that this country has seen in over a four-decade span," said Christian J. Ward, one of the lawyers representing the Texas utility district bringing the challenge. "It's one of the indicators of how times have changed."
The court has turned back a string of previous challenges to the Voting Rights Act, but appointments under President Bush have tilted the court to the right.
NAMUDNO was originally filed three years ago in opposition to Section 5 of the Voting Rights Act, which requires certain states with a history of racial discrimination to obtain Justice Department approval before changing their election practices -- by relocating polling places, for example, or redrawing district lines. First enacted in an era of blatantly discriminatory poll taxes and literacy tests, the act has been reauthorized several times, most recently in 2006 for 25 years.
Defenders of Section 5, who regard it as a crown jewel of American civil rights, argue that political discrimination lives on, notwithstanding Obama's election. In the states covered by Section 5 -- which include nine in the Deep South -- whites voted for Obama at a much lower rate than elsewhere in the country, according to a group of political scientists weighing in on the case.
"Far from suggesting a break with the voting patterns of the past, the 2008 election revealed the intransigence of racial differences in voting patterns," wrote Columbia Law School professor Nathaniel Persily in an amicus brief submitted with two other colleagues.
Before reauthorizing the Voting Rights Act in 2006, Congress gathered more than 27,000 pages of testimony detailing hundreds of cases of voting discrimination, according to Rep. John Conyers, D-Mich. To name just one example in the amicus brief Conyers submitted with several House Democrats, election officials in Jenkins County, Ga., attempted in 1995 to relocate a polling place accessible by foot in a predominantly black community to a less accessible location in a mostly white neighborhood outside city limits.
The problems still hampering the nation's election system nationally, moreover, tend to hit minority voters hardest. A recent landmark survey of the 2008 election found that racial discrepancies were significant in two of the key areas that plagued voters in 2008: wait times and photo identification. The survey, conducted by the Massachusetts Institute of Technology, helped prompt recent hearings in both the House and the Senate.
A full 29 percent of African Americans reported having to wait more than 30 minutes to vote, compared with only 14 percent of white voters, the survey found. A disproportionate percentage of black voters -- 70 percent -- were asked to show photo identification at the polls, compared with 51 percent of white voters. Ironically, the discrepancy was greatest in states with the least stringent ID requirements. (Erroneous ID requests are a common problem at the polls, election experts say.)
Though such problems are not limited to states covered by Section 5, they underscore the tenacity of racial barriers at the polls.
"Obama's election is obviously an important advance," noted Laughlin McDonald, director of the American Civil Liberties Union Voting Rights Project. "But it does not show that racially polarized voting is not a problem and has disappeared."
It remains to be seen how the Supreme Court regards Obama's election as it takes up the case. The high court will hear oral arguments later this month, and a ruling is expected in June. The court has turned back a string of previous challenges to the Voting Rights Act, but appointments under President Bush have tilted the court to the right. In a closely watched case last month, Bartlett v. Strickland, the high court narrowed the scope of Section 2 of the Voting Rights Act, making it harder for states to draw minority-majority voting districts.
All eyes will be on Justice Anthony Kennedy, who is increasingly perceived as the court's swing judge. Some voting rights advocates have taken heart from Kennedy's conclusion in his Bartlett v. Strickland majority opinion that "racial discrimination and racially polarized voting are not ancient history," and that "much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions."
Some argue that Obama's election is a red herring, and the real issue before the court is whether Congress acted constitutionally when it reauthorized the Voting Rights Act in 2006. "The court can't, and shouldn't, figure out what Obama's election means substantively," said Ellen D. Katz, a professor at the University of Michigan Law School.
It's "unusual" and "remarkable" that the 2008 presidential race has become a centerpiece of the NAMUDNO debate, Katz added. Still, she acknowledged that the historic context of the high court's pending oral argument may prove impossible to ignore: "It's a moment for reflection, at least, on whether the old remedies continue to be the right remedies at this moment going forward."