Tue February 28, 2012

Is The Voting Rights Act Endangered? A Legal Primer

The roiling legal battles over election laws passed in various states have potentially far-reaching consequences: the fate of a key section of the 1965 Voting Rights Act.

The landmark legislation requires the Justice Department to "pre-clear" any changes to election laws in some or all parts of 16 states, mostly in the South, because of their histories of racially discriminatory voting practices. The Justice Department recently used the mandate to block a voter identification law in South Carolina on grounds that it would harm minority voter turnout.

South Carolina has filed a federal lawsuit to overturn the decision, and legal observers believe the case has a strong chance of reaching the Supreme Court, where justices would be asked to rule on the constitutionality of the Voting Rights Act.

Texas, another "pre-clearance" state, has asked the Supreme Court to rule on its redistricting plan. A challenge of the Act brought by Shelby County, Ala. — which recently lost a ruling in federal district court — also could be headed to the High Court.

Each jurisdiction argues that its election processes no longer inhibit minority voters. NPR asked three legal scholars to weigh in, and they agreed that minority voters still need the protections of the Voting Rights Act. But its survival, they said, faces a real threat given a Supreme Court now openly skeptical of the law.

Mark Tushnet, a professor at Harvard Law School; Kareem U. Crayton, a professor the University of North Carolina School of Law; and Michael J. Pitts, a professor at Indiana University's Robert H. McKinney School of Law, answer five of the most pressing questions.

1. Why is the Voting Rights Act facing so many legal threats now?

"Conservative Republicans have been aggressive about the unconstitutionality of [the law] for a while. That's part of their party-building strategy in the South," says Tushnet, a constitutional law scholar and specialist in civil rights law, who served as a law clerk to late Supreme Court Justice Thurgood Marshall. The timing of the more recent lawsuits, Tushnet says, is owed "to conservative composition of the Supreme Court."

A pivotal Supreme Court ruling in 2009 suggested the mandate — known in legal circles as Section 5 of the law — may no longer be constitutional. "In part due to the success of that legislation, we are now a very different Nation," Chief Justice John Roberts wrote in the majority opinion.

Roberts also said continued enforcement "must be justified by current needs." Opponents welcomed the Roberts opinion as a sign of the court's new willingness to reconsider the constitutionality of one of the civil rights movement's greatest achievements.

"This has all the subtlety of a cymbal crashing," says Crayton, who served as legal counsel to the congressional black, Hispanic and Asian Pacific American caucuses, which jointly filed an amicus brief in the 2009 case defending the Voting Rights Act. "[Roberts] wrote the outline for the briefs that are being submitted now in these cases."

2. If the law has been so successful, why overturn it? Or has it become a would-be victim of its own success?

"This," Tushnet says, "is a complicated legal question." Plaintiffs say the Voting Rights Act unfairly applies only to selected jurisdictions rather than the entire nation. Taking up their side of the argument, Tushnet explains: "Indiana has a voter ID law, but Indiana isn't a covered jurisdiction. If there's reason to worry about the impact of voter ID laws on minorities in South Carolina, which is covered by the law, there's probably reason to worry about it in Indiana."

Tushnet also notes "the atmospherics of President Obama's election. ... For those who feel that this is an advantageous time [to challenge the law], it seems inappropriate to think there is pervasive prejudice against minorities in a nation that has elected a minority president."

The pressing legal question, Tushnet says, "is whether there is enough contemporary evidence that there are still enough problems" blocking minority voters' access to the polls. Most data show strong increases in minority voter registration and election turnout since the 1960s, in the South and nationally.

The Pew Research Center says the 2008 elections included the most diverse electorate in U.S. history, as non-whites made up nearly 24 percent of all voters. The share of white voters slid to 76.3 percent from 79.2 percent in 2004. Black turnout reached a record 65.2 percent in 2008, compared with 55 percent in 1988, according to the Pew study.

Driven by Barack Obama's presidential campaign, blacks turned out at the same rate as whites for the first time. Also in 2008, the voting rates of both Asian-Americans and Hispanics increased by roughly 4 percentage points from 2004, according to the Census Bureau.

3. Given the increased participation of minority voters, why should the federal government continue to provide them special protection?

"The fact that you see overall voting increases doesn't mean there aren't problems in specific jurisdictions," Tushnet says. He offers a fictional example: "Expanded access in Atlanta doesn't tell you if there are problems in, say, rural Georgia counties."

Even if circumstances for minorities have truly improved, Congress believes they haven't improved enough. In 2006, lawmakers voted to extend the Voting Rights Act for another 25 years.

Congress reviewed 15,000 pages of documents, including some 421 voting changes proposed in local jurisdictions that were denied by the Justice Department over 24 years. Crayton says Congress also considered other factors, such as "the continued presence of race-based voting decisions, driving white voters in some jurisdictions to not support candidates that non-whites prefer."

Crayton says such behavior has prevented "voting coalitions across races," providing "lots of evidence that this [federal protection] is still needed. ... African-Americans have been voting for white candidates for a long time, partly because they were the only candidates available. But white voters haven't built up the same record."

4. Does the conservative makeup of the Supreme Court improve the chances that voter protections will be overturned?

Pitts suggests the strong bipartisan congressional support for the 2006 extension may have set the bar too high for court intervention.

Then there's the import, and potential fallout, of overturning a landmark act of Congress. "This is widely known as one of the most successful civil rights laws in history, and to read the headlines the next day saying 'Supreme Court Strikes Down Voting Rights Act' — that headline maybe isn't one the justices want to read," says Pitts, who worked as a trial attorney in the Voting Section of the Justice Department under George W. Bush.

Instead, Pitts sees the court possibly weakening the law incrementally, in multiple cases that might arise over some years: "Tweaking it in such a way that makes it less onerous for governments to comply with Section 5. Some have referred to it as death by a thousand cuts."

5. What if the Supreme Court eventually does strikes it down? Would American elections change?

"Wow," Crayton says. "Well, that has serious legal and political implications, obviously." He says it would have any number of consequences for the presidential, congressional and state elections, particularly if the court hears the case this year.

Crayton cited the court's role in the 2000 Florida recount as a cautionary tale: "If you are of the thought that the Supreme Court shouldn't be mucking around in electoral politics, this would be your case to fight. Communities would be mobilized."

He believes court action also would compromise redistricting maps for many states: "It would raise the question of whether states that have had to comply with federal oversight would rethink their redistricting plans."

Tushnet predicts "a falling-off of minority participation in rural areas" and more states adopting voter identification laws. However, he says, "it wouldn't go back to the world of widespread effective disenfranchisement because there's enough political power in the African-American community to keep things from getting too bad."

Pitts says some "backsliding" might occur in contests for lower offices: "The one minority member of the five-member school board somewhere might be redistricted out of office. Then it becomes much harder to undo that through litigation, rather than Section 5 holding things in place."
