Appeals court hears challenge to Voting Rights Act

WASHINGTON – Appeals court judges expressed concern Thursday about whether to overrule Congress' determination that some southern states and other jurisdictions still must have federal election monitoring to protect minority voting rights.

Alabama's Shelby County is challenging a requirement under the Voting Rights Act that governments with a history of discrimination obtain federal approval to change even minor election procedures. An attorney for the county argued in federal appeals court in Washington that the South has changed and that extraordinary oversight is no longer needed.

But two of three judges on the panel hearing the case pointed out Congress renewed the provision of the 1965 Voting Rights Act in 2006 after finding that discrimination still exists. A lower court endorsed that finding.

"Why shouldn't we defer to the judgment of Congress?" asked Judge Thomas Griffith, the Senate's former top lawyer and a nominee of President George W. Bush. Judge David Tatel, a former civil rights attorney and appointee of President Bill Clinton, asked similar questions.

Griffith pointed out that lawmakers spent a considerable amount of time weighing evidence of continued racial discrimination and that the Constitution gives the legislature power over decisions that affect the 15th Amendment's protections of voting rights for racial minorities.

"But that can't be without limitation," responded Shelby County's attorney, Bert Rein. He said the numbers of blacks registered to vote and elected to office has increased dramatically since the act was first passed and said those who implemented discriminatory practices in the 1960s are no longer in charge. "The South has changed," he said.

The county, located just south of Birmingham in central Alabama, sued Attorney General Eric Holder in 2010 to stop the monitoring required under Section 5 of the Voting Rights Act. The provision relies heavily on patterns of past discrimination to determine which state, county and local governments must obtain "preclearance" for election changes as minor as moving a polling place or redrawing school district lines. That clearance can come either from the Justice Department or from a federal court in Washington.

U.S. District Judge John Bates ruled against the county and upheld the law in September after reviewing 15,000 pages of congressional records and deciding that lawmakers were justified in finding that discrimination still existed in the covered jurisdictions.

The judge pointed to several examples of outright discrimination across the South since the 1980s, including legislators in Mississippi and Georgia using racial epithets during redistricting debates and reports of harassment of blacks at the polls in Texas and South Carolina.

According to the Justice Department Web site, Section 5 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, as well as some local jurisdictions in Michigan and New Hampshire. Preclearance coverage under the act has been triggered by past discrimination not only against blacks, but also against American Indians, Asian-Americans, Alaskan Natives and Hispanics.

The same three-judge appellate panel, which also includes Ronald Reagan appointee Stephen Williams, is scheduled to hear another challenge to the law brought by North Carolina on Feb. 27.

Justice Department attorney Sarah Harrington argued that Section 5 has stopped discriminatory actions and said its protections are still needed. Although the Voting Rights Act has been called the most successful civil rights legislation in U.S. history, she said, "Things have not gotten better enough. There still continues to be a problem."

But Tatel reminded Harrington that the Supreme Court questioned in 2009 whether Southern states should still need advance approval of voting changes more than 40 years after the law was enacted. In that case, the justices avoided deciding whether the requirement is constitutional, which creates the possibility of the Shelby County or North Carolina cases reaching the high court.