Frank “Butch” Ellis Jr. was sitting in his law office a half-hour’s drive from Birmingham, Ala., about three years ago when Edward Blum, an investment banker turned conservative legal activist, called him to discuss the Voting Rights Act. Although the two had never met, they quickly bonded over a common grievance. Blum specifically wanted to discuss a provision in the landmark civil rights law requiring localities with a history of racial discrimination to obtain U.S. Justice Department permission to make any changes to their election procedures. Ellis, during nearly a half-century practicing law in Shelby County, had watched municipal clients jump through procedural hoops to gain “preclearance” from Washington lawyers. Moving a polling place could take months, for example, and require a voluminous paper trail. When Blum suggested that Shelby County officials, with Blum’s financial support, someday might challenge the provision in court, Ellis agreed. “We knew the only way to attack it was in the courts, in Washington,” Ellis explained recently. “We had the desire to do it, we just couldn’t spend our taxpayers’ money on it.”
That conversation was the start of a case that could dramatically alter the scope of the Voting Rights Act, a central feature of President Lyndon B. Johnson’s Great Society program. On Feb. 27, a legal team recruited by Blum will argue before the Supreme Court that the law’s preclearance requirement is an outdated vestige of the Old South that should have been updated or abandoned decades ago.
“The South has changed,” Ellis says. “We’ve changed; the economic situation has changed.”
Whether the justices agree will depend in large part on the record Congress left for the courts when it last reauthorized key parts of the Voting Rights Act in 2006 — specifically, whether lawmakers had enough evidence of discrimination to warrant renewing the preclearance process without substantial revision.
The bill was ushered through a Republican-controlled Congress with limited debate and virtually no public dissent. But some of the same lawmakers who stood by as President George W. Bush proudly signed the reauthorization in a ceremony on the White House grounds just the previous day had signed their names to a revised committee report on the bill that raised serious concerns about the statute and the process by which it had been renewed, even calling the Voting Rights Act a “tool for political and racial gerrymandering.”
Those doubts about the reauthorization, whether the preclearance provision was still needed and, if it was, in what form, could make it easier for the justices to toss it out.
“It was clear that the seeds were being sown for a legal challenge,” says Rick Hasen, a law professor at the University of California, Irvine.
Should the court now overturn the preclearance process, congressional supporters would be hard-put to restore it. Republican Jim Sensenbrenner of Wisconsin, who helped drive the 2006 reauthorization as chairman of the House Judiciary Committee, no longer has that leverage. Many of the Republicans who helped him six years ago have left Congress, and the parties are more divided than ever.
“I don’t think it’s an impossibility,” Sensenbrenner says, but it would be “more difficult following a Supreme Court decision than with a congressionally imposed expiration date.”
Full Article: CQ | Voting Rights Act at Risk?.