Supreme Court wrestles with Voting Rights Act case

Should states — including Georgia — be held to account for past discrimination?

The Atlanta Journal-Constitution

Wednesday, April 29, 2009

Washington — The Supreme Court’s conservative justices led a sustained attack Wednesday on a key element of the Voting Rights Act.

They questioned whether one-time bastions of segregation — including Georgia — still should be held to account for past discrimination.

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The case is a test of whether states must continue to get federal permission before changing voting rules.

Under the current law, states and parts of states whose governments historically used Jim Crow-era laws to impose segregation in voting must get Department of Justice permission whenever they seek to do anything as simple as changing when early elections can be held, and as complex as redrawing political districts.

The justices who were skeptical of that part of the voting rights law Wednesday included Justice Anthony Kennedy, whose views are likely to prevail on the closely divided court. He tends to side with his more conservative colleagues on matters of race.

On the other side, the liberal justices defended Congress’ decision to keep the law in place to prevent ongoing discrimination.

The tenor of the quick-paced argument suggested that there could be a court majority to strike down the provision of the voting rights law that has been the Justice Department’s main enforcement tool against discriminatory changes in voting since the law was enacted in 1965. It opened elections to millions of blacks and other minorities.

Georgia Rep. John Lewis, a Democrat from Atlanta and a leader of the Civil Rights Movement that resulted in the 1965 Voting Rights Act, submitted a brief opposing changes to the law.

Wednesday, Lewis listened to arguments from a seat in the middle of the Supreme Court, his first visit there to hear a case in his nearly 23 years in Washington.

“It reminded me of some of the same debate of 1965,” Lewis said later. “This Act is one of the most progressive pieces of legislation the country ever passed, and it changed America forever. We don’t need to go back.”

Georgia Gov. Sonny Perdue, a Republican, submitted a personal brief opposing the continuation of Section 5 of the Act, saying that the election of a black president, among other things, shows that there’s no need for the law. Perdue hired a private lawyer to file the brief because the state’s attorney general refused to file it.

An attorney for the Northwest Austin (Texas) Municipal Utility District No. 1, which brought the case, said the rule lets the federal government improperly infringe on the sovereignty of states like Texas and Georgia, penalizing them for past history in a way that’s no longer applicable.

The court’s conservative judges bolstered that argument.

“Congress has made the finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio,” and other states, said Kennedy, a Ronald Reagan appointee who often is a swing vote on decisions on social issues.

Chief Justice John Roberts, a George W. Bush appointee, questioned whether the voting rights rule was trying to do something that may not really be needed anymore, comparing it to an “elephant whistle.”

“You know, I have this whistle to keep away the elephants,” Roberts said rhetorically. “Well, there are no elephants, so it must work.”

Others, however, said that while voter discrimination has declined, it’s still a problem.

Justice David Souter, a George H.W. Bush appointee who typically is among the court’s more liberal members, rattled off a list of what he characterized as evidence of discrimination — including a 16-point difference in Hispanic and non-Hispanic voter registration in Texas and 600 lawsuits throughout the country alleging voter discrimination.

“I don’t understand, with a record like that, how you can maintain as a basis for this suit that things have radically changed,” Souter asked attorney Gregory Coleman, who brought the case on behalf of the Texas utility district. “They may be better. But to say that they have radically changed … [is] to deny the empirical reality.”

The tiny utility district in the middle of Texas hasn’t done anything wrong. Opponents to Section 5 of the Voting Rights Act and racial classifications in employment convinced the district to become part of the case shortly after Congress reauthorized Section 5 for another 25 years back in 2006.

If the provision is struck down, it could weaken the argument for race-based decisions on voting, employment and education. It could also allow affected states and smaller governmental bodies within them to change their voting laws more freely to help incumbents and others.

U.S. Rep. Lynn Westmoreland, a Republican from Coweta County who is helping lead Republican redistricting efforts in the House, said in a statement after Wednesday’s hearing that he was encouraged by the reactions he heard from the justices. Westmoreland was one of the biggest — and few — opponents to reauthorizing the provision when Congress reconsidered it in 2006. The U.S. Senate ultimately voted unanimously and the House voted 390-33 to reauthorize it.

“I have to have faith in the American system that the court will restore Georgia and other states to their rightful place as an equal partner in these United States,” Westmoreland said Wednesday.

Opponents to striking the rule say it could lead to gerrymandering and fewer elected minorities.

“We know where this will lead … we have seen what can happen,” said John Payton, president and director of the NAACP Legal Defense and Educational Fund.

Lewis, whose own election to Congress in 1986 was a testament to the Voting Rights Act, agreed.

“Discrimination is still real in the political process,” he said.

— Staff writer Bob Keefe ( and Associated Press writer Mark Sherman contributed to this report.