WASHINGTON — The U.S. Supreme Court will consider eliminating the government's most potent weapon against racial discrimination at polling places since the 1960s.
The decision came three days after a diverse coalition of voters propelled President Barack Obama to a second term in the White House.
With a look at affirmative action in higher education already on the agenda, the court is putting a spotlight on race by re-examining the ongoing necessity of laws and programs aimed at giving racial minorities access to major areas of American life from which they once were systematically excluded.
“This is a term in which many core pillars of civil rights and pathways to opportunity hang in the balance,” said Debo Adegbile, acting president and director-counsel of the NAACP Legal Defense and Educational Fund. In an order Friday, the justices agreed to hear a constitutional challenge to the section of the landmark Voting Rights Act that requires all or parts of 16 states with a history of discrimination in voting to get federal approval before making any changes in the way they hold elections.
The high court considered the same issue three years ago but sidestepped what Chief Justice John Roberts then called “a difficult constitutional question. ”The new appeal from Shelby County, Ala., near Birmingham, says state and local governments covered by the law have made significant progress and no longer should be forced to live under oversight from Washington.
“The America that elected and re-elected Barack Obama as its first African-American president is far different than when the Voting Rights Act was first enacted in 1965. Congress unwisely reauthorized a bill that is stuck in a Jim Crow-era time warp. It is unconstitutional,” said Edward Blum, director of the not-for-profit Project on Fair Representation, which is funding the challenges to the voting rights law and affirmative action.
Defenders of the law pointed to the Justice Department's efforts to block voter ID laws in South Carolina and Texas, as well as a redistricting plan in Texas that a federal court found discriminated against the state's large and growing Hispanic population.
“What we know even more clearly now than we did when the court last considered this question is that a troubling strain of obstructing the path to the ballot box remains a part of our society,” Adegbile said.
Since the court's decision in 2009, Congress has not addressed potential problems identified by the court. Meanwhile, the law's opponents sensed its vulnerability and filed several new lawsuits. Addressing those challenges, lower courts have concluded that a history of discrimination and more recent efforts to harm minority voters justify continuing federal oversight.
The justices said they will examine whether the formula under which states are covered is outdated because it relies on 40-year-old data. By some measures, states covered by the law are outperforming some that are not.
The Nov. 6 election results also provide an interesting backdrop for the court's action. Americans re-elected the nation's first African-American president. Exit polls across the country indicated Obama won the votes of more than 70 percent of Hispanics and more than 90 percent of blacks. In Alabama, however, the exit polls showed Obama won only about 15 percent of the state's white voters. In neighboring Mississippi, the numbers were even smaller, at 10 percent, the surveys found.
The case probably will be argued in February or March, with a decision expected by late June. The advance approval, or preclearance requirement, was adopted in the Voting Rights Act in 1965 to give federal officials a potent tool to defeat persistent efforts to keep blacks from voting.
The provision was a huge success and Congress periodically has renewed it over the years. The most recent occasion was in 2006, when a Republican-led Congress overwhelmingly approved and President George W. Bush signed a 25-year extension.
The requirement currently applies to the states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. It also covers certain counties in California, Florida, New York, North Carolina and South Dakota and some local jurisdictions in Michigan and New Hampshire. Coverage has been triggered by past discrimination not only against blacks but also against American Indians, Asian Americans, Alaskan Natives and Hispanics.
Before these locations can change their voting rules, they must get approval either from the U.S. Justice Department's civil rights division or from the federal district court in Washington certifying that the new rules won't discriminate.
Congress compiled a 15,000-page record and documented hundreds of instances of apparent voting discrimination in the states covered by the law dating to 1982, the last time it had been extended.
Six of the affected states — Alabama, Arizona, Georgia, South Carolina, South Dakota and Texas — are backing Shelby County's appeal. In 2009, Chief Justice Roberts indicated the court was troubled about the ongoing need for a law in the face of dramatically improved conditions, including increased minority voter registration and turnout rates. Roberts attributed part of the change to the law itself.
“Past success alone, however, is not adequate justification to retain the preclearance requirements,” he said.
Jurisdictions required to obtain preclearance were chosen based on whether they had a test restricting the opportunity to register or vote and whether they had a voter registration or turnout rate below 50 percent.
A divided panel of federal appeals court judges in Washington said that the age of the information being used is less important than whether it helps identify jurisdictions with the worst discrimination problems.
Shelby County, a well-to-do, mostly white bedroom community near Birmingham, adopted Roberts' arguments in its effort to have the voting rights provision declared unconstitutional.
Yet, just a few years earlier, a town of nearly 12,000 people in Shelby County defied the voting rights law and prompted the intervention of the Bush Justice Department. Ernest Montgomery won election as the only black member of the five-person Calera City Council in 2004 in a district that was almost 71 percent black. The city redrew its district lines in 2006 after new subdivisions and retail developments sprang up in the area Montgomery represented, and the change left his district with a population that was only 23 percent black.
Running against a white opponent in the now mostly white district, Montgomery narrowly lost a re-election bid in 2008. The Justice Department invalidated the election result because the city had failed to obtain advance approval of the new districts.