Voting Rights Act Faces a Supreme Test

The Supreme Court’s conservative majority may modify a key part of the Voting Rights Act. But it’s unlikely to eviscerate it.

It rained all day but that did not dampen the spirits of blacks determined to register to vote. They stood in the rain trying to register in a priority book to take voter registration test in Selma, Alabama, Feb. 17, 1965. Nearly 1,000 black names are now on the book waiting to take the voter registration test. (AP Photo)
Matthew Cooper
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Matthew Cooper
Feb. 14, 2013, 3:10 p.m.

Bert Rein’s K Street of­fice con­veys a cer­tain droll hu­mor with its souven­irs and toys — in­clud­ing a Ses­ame Street doll of that oth­er Bert. With his name on the door of his firm, Wiley Rein, the 71-year-old sits atop Wash­ing­ton’s leg­al pro­fes­sion, where he reg­u­larly lands on those “Best Law­yers” lists. Still, it wasn’t un­til this winter that he’d ever ar­gued a case be­fore the Su­preme Court. Rein has likened him­self to Satchel Paige, the famed Negro Leagues base­ball play­er who didn’t be­come a ma­jor-league rook­ie un­til he was 42.

The ana­logy has a cer­tain res­on­ance both in terms of race and age. Rein is chal­len­ging the Obama Justice De­part­ment in two im­port­ant cases deal­ing with race. In Decem­ber, he went be­fore the high court on be­half of Aman­da Fish­er, a white stu­dent, who ar­gues that the Uni­versity of Texas un­fairly denied her ad­mis­sion. On Wed­nes­day, he’ll ar­gue for the ab­ol­i­tion of a key pro­vi­sion of the 1965 Vot­ing Rights Act. “They’re not the same case, but there’s a thread between them,” says Rein, sur­roun­ded by briefs from the up­com­ing case. “When you pick out groups and say, “˜You have to do more,’ what’s the jus­ti­fic­a­tion for that?”

No one can be sure what the Su­preme Court will do with the two cases that Rein, a vet­er­an of the U.S. Cham­ber of Com­merce, is car­ry­ing. Last year’s sur­prise rul­ing up­hold­ing the Obama health care law’s cent­ral ten­et, the in­di­vidu­al in­sur­ance man­date, cer­tainly humbled leg­al ob­serv­ers. But while it’s a reas­on­able bet that the Roberts Court won’t ab­ol­ish the vot­ing-rights law, it will al­most cer­tainly tinker with dec­ades-old ra­cial rem­ed­ies that the con­ser­vat­ive justices see as hav­ing gone too far.

That the Court de­cided to take the Vot­ing Rights Act case at all is a sign that the con­ser­vat­ives are in­ter­ested in some sort of roll­back. At is­sue is not the en­tire law but mainly its Sec­tion 5, a tem­por­ary pro­vi­sion that’s been re­newed a num­ber of times by Con­gress since 1965. Un­der Sec­tion 5, the Justice De­part­ment must pre­clear for cer­tain jur­is­dic­tions any changes in their vot­ing pro­ced­ures — say, an ad­just­ment in vot­ing hours or a new bal­lot. This re­quire­ment was aimed mostly at South­ern states that had a his­tory of deny­ing blacks their right to vote, not only through brute force but with sub­ter­fuges such as poll taxes and lit­er­acy tests. Con­gress saw Sec­tion 5 as the only way to se­cure those rights be­fore they could be taken away. It still does. In 2006, re­new­al of the Vot­ing Rights Act passed the House by al­most 400 votes and the Sen­ate by 98-0.

The Su­preme Court up­held Sec­tion 5 for dec­ades. But a shift came in 2009 when the Court heard a chal­lenge from a util­ity dis­trict in Texas. Al­though Chief Justice John Roberts used the oc­ca­sion to laud the act, he also warned that Sec­tion 5 “now raises ser­i­ous con­sti­tu­tion­al is­sues.” Enter the con­ser­vat­ive ad­vocacy group Pro­ject on Fair Rep­res­ent­a­tion. Led by a con­ser­vat­ive law­yer, Ed­ward Blum, the or­gan­iz­a­tion found a will­ing plaintiff in Shelby County, Ala., a bed­room com­munity near Birm­ing­ham where loc­al of­fi­cials saw Justice De­part­ment de­cisions as meddle­some and un­con­sti­tu­tion­al. Blum brought in Rein, and the case was rolling.

Rein and his al­lies note that Sec­tion 5 re­lies on a for­mula in the stat­ute based on past use of vot­ing tests and oth­er meas­ures to de­term­ine which jur­is­dic­tions have to be pre­cleared, and they ar­gue that it’s a blun­der­buss. In­deed, some states and cit­ies have fallen un­der Sec­tion 5’s sway even though they had not a thing to do with Jim Crow — some towns in New Hamp­shire, for ex­ample — while Ten­ness­ee is not covered. Among those fil­ing amicus briefs in the Shelby case is the state of Alaska, which falls un­der Sec­tion 5. The state’s lead at­tor­ney on the case, Mar­garet Paton Walsh, con­tends that Justice De­part­ment law­yers have mi­cro­man­aged everything from the dis­tri­bu­tion of voter guides — in Eng­lish, Span­ish, and Ta­ga­log — to the mi­grant work­ers at the state’s fish can­ner­ies, to for­cing the state to print spe­cial bal­lots for tribes that have only an or­al tra­di­tion. “We’re thou­sands of miles away,” she says, “and they don’t un­der­stand that things can be dif­fer­ent and funky here.”

On the op­pos­ite side is an ar­ray of civil-rights groups, as­sor­ted state at­tor­neys gen­er­al, and, most im­port­ant, the Justice De­part­ment. Their ar­gu­ment is that vot­ing-rights ab­uses con­tin­ue and that Sec­tion 5 is more scalpel than meat ax. “There really is no ad­equate sub­sti­tute,” says Robert Kengle, co­dir­ect­or of the Vot­ing Rights Pro­ject at the Law­yers’ Com­mit­tee for Civil Rights Un­der Law who once served in the Justice De­part­ment’s Vot­ing Rights Sec­tion. Ad­voc­ates ar­gue that the end of Sec­tion 5 would, among oth­er things, mean hav­ing to comb through the minutes of county meet­ings to know which cases to take to court un­der oth­er parts of the law that al­low suits to be filed.

So how might the justices sort this out? Roberts will likely tread care­fully be­fore jet­tis­on­ing a key pro­vi­sion of a law be­loved and backed over­whelm­ingly in Con­gress. Justice An­thony Kennedy, 76, may not want rip­ping apart the his­tor­ic act to over­shad­ow his repu­ta­tion as a cent­rist jur­ist. And then there’s the his­tory of race cases in re­cent years where the high court has bobbed and weaved, al­low­ing some rem­ed­ies to sur­vive and rarely wip­ing out en­tire re­gimes. Even a prom­in­ent crit­ic of Sec­tion 5, Abi­gail Thern­strom, vice chair of the U.S. Com­mis­sion on Civil Rights, pre­dicts it will sur­vive. What is cer­tain to rise is the level of skep­ti­cism that such rem­ed­ies are re­quired in the mod­ern world. As re­cently as 2003, when Wil­li­am Rehnquist was chief, the Court up­held an af­firm­at­ive-ac­tion plan at the Uni­versity of Michigan. But in do­ing so, then-Justice Sandra Day O’Con­nor noted that such meas­ures might not be needed in 25 years. The Roberts Court seems more than will­ing to move up that ex­pir­a­tion date.

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