Sunday | August 28, 2016
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Supreme Court to consider states’ rights vs. voting rights

WASHINGTON — When the Supreme Court hears arguments Wednesday in a direct challenge to a central part of the Voting Rights Act, it will once again wade into a decades-old dispute over voting rights that has its roots in the country’s long history of racism.

But in asking whether a key part of the federal law is constitutional, the court also will reopen a debate that long predates the measure’s enactment in 1965. It’s an argument that was at the heart of the U.S. Civil War, and one that has seen resurgence in recent years as Republicans around the country bristle at what they perceive as meddling from Washington.

That debate is the battle over states’ rights.

On its face, the challenge to the Voting Rights Act is about how state and local officials run elections. But states’ rights have underpinned much of the opposition to the law since it was first enacted, and Wednesday’s hearing will feature familiar arguments.

The issue is Section 5 of the law, which requires all or part of 16 states to get any changes to election law pre-approved by either the Justice Department or a federal court. That requirement, based on findings of discrimination and racism years ago, applies to most every aspect of elections, from technical changes to the high-profile issue of photo ID requirements that recently spawned court battles for states such as Texas and South Carolina. The challenge was brought by Shelby County, Ala., and argues that the act’s preclearance requirement is unconstitutional on its face, no matter how it’s employed.

“Section 5’s federalism cost is too great,” the county argues plainly in its Supreme Court brief, pointing to a lack of evidence to justify what it sees as federal overreach.

The requirement was controversial from the beginning, in part because it gave the federal government extraordinary power over certain states. The measure was also intended to be temporary, which further motivates critics. Congress renewed it over the years (most recently in 2006) without major changes.

But there’s also new life in the case against Section 5 of the Voting Rights Act based on a seemingly simple argument: Times have changed. The Supreme Court acknowledged as much in a 2009 opinion that upheld the preclearance requirement but raised significant questions about its constitutionality.

“Things have changed in the South,” Chief Justice John Roberts wrote for the 8-1 majority, listing increasing parity in turnout and diversity among elected officials as evidence of progress — much of which he attributed to the Voting Rights Act.

“Past success alone, however,” he added, “is not adequate justification to retain the preclearance requirements.”

So criticisms today will harken to old debates, but whether the discrimination and racism that prompted the requirements in the first place still exist today will play a central role.

For critics, the answer is simple. “Jim Crow was an aberration that took an extraordinary remedy,” says Ilya Shapiro, a legal expert at the libertarian Cato Institute. “(This case is) not about denying people the right to vote or allowing states the leeway to do so.”

There’s evidence to bolster those claims. The blatant discrimination, from poll taxes to literacy tests, that was rampant decades ago is no longer a concern. Parity among white and non-white voters in areas under the requirement is also a sign of improvement, critics say.

But there are counterweights. Supporters point to the 15,000 pages of evidence Congress compiled showing lingering discrimination, the proportion of non-white officeholders in covered areas and turnout trends to make the case for renewing preclearance as it debated the act in 2006.

There’s also the practical effect of the preclearance requirement: From 1982 to 2006, one-fourth of proposed voting law changes were withdrawn from covered jurisdictions after the Justice Department simply requested more information, a congressional report says.

“It gives a sense of how many dogs did not bark as a result of the threat of a denial,” Nathaniel Persily, a Columbia Law School professor, wrote in a 2007 paper on the Voting Rights Act.

Still, the progress is undisputed. And for supporters, that’s left them with fewer violations to justify the measure and making the case that the requirements still are needed.

“Like any other law,” Persily wrote, “Section 5’s effectiveness should not be evaluated by the number of times it is broken.”

Much of the force behind the renewed push against Section 5 comes from those who argue that the federal government is overly activist and discriminatory in its own right, because it treats states differently.