Voters Rights Act Under Scrutiny

Story first appeared in USA TODAY.

A federal court in Washington upheld the part of the Voting Rights Act that requires states with a history of racial discrimination to get advance approval from the Justice Department before changing voting laws. This has prompted some to take anti discrimination training.
The ruling comes as the Justice Department is being deluged with applications from states and localities asking for pre-approval of new boundaries for congressional, state legislative and other voting districts, which are being redrawn after the 2010 Census. As of last week, the Justice Department had 794 "pre-clearance" cases pending.
In the court case brought by Shelby County, Ala., county officials argued that Section 5 of the Voting Rights Act, which requires the advance approval, has cost "significant taxpayer dollars, time and energy" — and that the county had to delay at least one election while it waited for approval.
Judge John Bates of the U.S. District Court for the District of Columbia ruled in a 151-page opinion that the modern existence of intentional racial discrimination in voting justifies the 2006 decision by Congress to extend the Voting Rights Act through 2031.
Nathaniel Persily, a Columbia University law professor whose work was quoted in the opinion, has said the Voting Rights Act is living on borrowed time.
This decision is a shooting of the starting gun in the race to have Section 5 declared unconstitutional. It is expected that the case will reach the Supreme Court, which upheld the Voting Rights Act in 2009 in a case that largely avoided the constitutional issues raised in the Shelby County case.
The case could have political ramifications as states prepare for 2012 congressional elections.
This decision comes out at a time when the Department of Justice is flooded with pre-clearances over redistricting. The Obama administration has been very reluctant to deny pre-clearance to redistricting plans and voting changes because they know the Supreme Court is looking over their shoulder.
The decision, however, comes the same week Attorney General Eric Holder signaled his intent to fight proposed new congressional districts and state House districts in Texas, which Justice Department lawyers said would diminish the ability of minority voters to select a candidate of their choice.
The Justice Department is scheduled to examine six other redistricting plans in the next six weeks, including congressional maps in Alabama, North Carolina and South Carolina.
Frank Ellis, the Shelby County attorney, could not be reached. Bert Rein, the Washington lawyer who argued the case for the county, declined to comment.
The Project for Fair Representation, a non-profit group that supports legal challenges to race-based voting and affirmative action laws, said it would continue to support the lawsuit if it goes to the Supreme Court.
Edward Blum, the project's director, said the court failed to consider why some states are on the pre-clearance list while others are not.
Nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — must seek approval of any voting change. Parts of seven other states must do so.
It makes no sense in 2011 for Shelby County, Ala., to be covered by these provisions, but not Shelby County, Tenn. If the Voting Rights Act needs to be in place to protect minority interests, it should be done coast to coast, and not just in places where there were bad actors 30 years ago.
Justice Department spokeswoman Xochitl Hinojosa applauded the court ruling and said the Justice Department will continue to defend the constitutionality of the Voting Rights Act, which she noted has overwhelming bipartisan support in Congress.