Gannett Washington Bureau
WASHINGTON -- Iron-fisted enforcement of the 1965 Voting Rights Act transformed American politics, especially in the South, by making sure minorities had a clear path to the ballot box and an equal shot at public service.
Forty-eight years later, after the re-election of an African-American president, the heart of that law is on trial.
The Supreme Court will hear oral arguments today in a case that is sure to ignite a national debate over how far the country has progressed on racial issues and whether minority voters still need extra protection.
Shelby County, Ala., opposed by the Justice Department and civil rights groups, wants two key sections of the Voting Rights Act declared unconstitutional.
Section 5 bars election officials in jurisdictions with a history of discrimination from changing their voting procedures unless they first prove the changes won't hurt minorities. Section 4b uses a formula to determine which states, counties and municipalities are subject to Section 5.
Shelby County says the provisions are outmoded and unfair to parts of the country that have transcended their discriminatory pasts.
Civil rights groups counter that the provisions are the best defense against a return to the days when racism permeated election procedures in many parts of the country, particularly the South.
"This idea that we can stop with the job half done and see how it works out -- that is not meeting the promise and possibility of the Constitution," said Debo Adegbile, counsel to the NAACP Legal Defense Fund and a lawyer in the case.
Previous attempts to gut the Voting Rights Act have failed, and in 2006, Congress extended the law for 25 years.
But in 2009, the Supreme Court questioned whether the law's "current burdens" were justified by "current needs," essentially inviting another attempt to overturn it.
"Congress unwisely reauthorized a bill that is stuck in a Jim Crow-era time warp," said Edward Blum, director of the Project on Fair Representation, which is financing Shelby County's challenge to the Voting Rights Act.
The county is in a predominantly white and heavily Republican area south of Birmingham and north of Selma, geographically close to the origins of the civil rights movement.
Alabama is one of nine states fully covered by Section 5 because of its history of discrimination. The section also covers parts of seven states.
"Section 5 is Alabama's gift to democracy," Adegbile said. "People stood in harm's way to make sure the promise in the Constitution was kept. In that way, it is a gift to the nation."
Since 1982, the Voting Rights Act has blocked 2,400 voting changes that federal officials found discriminatory. Some of those changes were part of recent, high-profile cases involving voter identification and statewide redistricting.
"There is too much evidence that they don't police themselves," Nina Perales, vice president of litigation with the Mexican American Legal Defense and Educational Fund, said of states subject to Section 5 restrictions.
But there has been progress.
The 1965 law successfully eliminated poll taxes, literacy tests and other tactics created to discourage blacks from voting. And it boosted black voter turnout and the number of black elected officials.
Shelby County and its allies cite those trends in arguing that Section 5 states, counties and municipalities should no longer be punished for the sins of their grandfathers.
Justice Department officials objected to more than 14 percent of all election changes submitted under Section 5 between 1965 and 1974. From 1982 to 2004, the agency objected to fewer than 1 percent.
"That difference is massive," lawyers for Shelby County wrote in court papers. "At most, the 2006 legislative record shows scattered and limited interference with voting rights, a level plainly insufficient to sustain Section 5 pre-clearance."
Shelby County also says Section 2 of the Voting Rights Act, which allows people to sue if they feel their rights have been threatened, is a sufficient deterrent.
But Section 2 doesn't block discrimination before it happens, as Section 5 does, civil rights activists say. And Section 5 puts the burden on local governments to prove elections are fair.
"That is the incredible power of Section 5 and why it's so important to us,'' said Barbara Arnwine, executive director of the Lawyers' Committee for Civil Rights Under Law. "That is a conscious question among African-American voters: How protected am I?"
Section 5 was controversial during the 2006 debate over renewing the Voting Rights Act. Conservative Republicans said the formula in Section 4b, based on 1972 voter turnout data, doesn't accurately identify which jurisdictions should still be covered.
Republican Rep. Lynn Westmoreland of Georgia proposed modifying Section 4b, which would have removed some states from coverage. He said the Supreme Court should question whether the formula is still valid.
"I think they're going to say, 'Look, y'all got to update this,' which we tried to do,'' he said. "You can't change history, no matter how bad we want to.''
The 2006 congressional debate clearly showed discrimination was still a problem, Section 5 supporters say. Lawmakers held dozens of hearings and built a 12,000-page record. The final vote to renew the Voting Rights Act was overwhelmingly bipartisan.
Democrats say if the court overturns the provisions, Congress will respond.
"People believe in the Voting Rights Act," Democratic Rep. Melvin Watt of North Carolina said. "They believe in guaranteeing minority communities a positive role in the Democratic process."
But Chandler Davidson, a voting rights expert at Rice University, questions whether Congress would be able to resurrect Section 5.
"It's unclear to me what Congress would do, especially given the Congress we have right now, to remedy the great loss that the end of Section 5 would constitute,'' Davidson said. "There are many people in Congress right now who would be just as happy as they could be to let it lie.''
Section 5 of the Voting Rights Act
Requires states, counties and local governments with a history of discrimination to get permission from the Justice Department or a federal court before making any changes to voting procedures.
Section 4b of the Voting Rights Act
Determines which jurisdictions are subject to Section 5.
Jurisdictions are subject to Section 5 if they ever used a test or device -- such as a literacy test or a requirement to prove good moral character -- that restricted the ability to register and vote. Jurisdictions also are subject to Section 5 if less than 50 percent of their voting-age citizens were registered to vote or voted in the 1972 presidential election.
Source: Justice Department
Which states are covered?
Nine states are fully covered by Section 5 of the Voting Rights Act. They are: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.
Seven states are partially covered by Section 5. They are: California, Florida, New York, North Carolina, South Dakota, Michigan and New Hampshire (New Hampshire has a request for exemption pending).
Source: Justice Department