Voting Rights Act Is Challenged as Cure the South Has Outgrown
By Adam Liptak
EVERGREEN, Ala. — Jerome Gray, a 74-year-old black man, has voted in every election since 1974 in this verdant little outpost of some 4,000 people halfway between Mobile and Montgomery. Casting a ballot, he said, is a way to honor the legacy of the Voting Rights Act of 1965, a civil rights landmark born from a bloody confrontation 70 miles north of here, in Selma.
The franchise remains fragile in Evergreen, Mr. Gray said. Last summer, he was kicked off the voting rolls by a clerk who had improperly culled the list based on utility records.
A three-judge federal court in Mobile barred the city from using the new voting list, invoking Section 5 of the Voting Rights Act, which requires many state and local governments, mostly in the South, to obtain permission from the Justice Department or from a federal court in Washington before making changes that affect voting.
That provision is also at the heart of one of the marquee cases of the Supreme Court’s term, Shelby County v. Holder, No. 12-96, which will be argued on Feb. 27. It was brought by Shelby County, near Birmingham, and it contends that the provision has outlived its purpose of protecting minority voters in an era when a black man has been re-elected to the presidency.
The Voting Rights Act was a triumph of the civil rights movement. It was a response, the Supreme Court said in upholding it in 1966, to “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.”
Congress was entitled, the court went on, “to limit its attention to the geographic areas where immediate action seemed necessary.” Lawmakers chose the areas to be covered based on a formula that considered whether they had used devices to discourage voting, like literacy tests, and data from the 1964 election.
The court in Mobile this month said the case before it, concerning Evergreen, was simple: because the city had not obtained preclearance from federal authorities, it could not revise its voting list using utility records. Nor could it use a municipal redistricting plan enacted by the City Council that had concentrated black voters, who are in the majority, into just two of the five districts, limiting black voting power.
It is not clear when the municipal election, originally scheduled for last August, will be held.
A lawyer for Evergreen, James H. Anderson, said the ruling was justified. “The way the voter list was recomposed was improper,” he said. He added that the redistricting plan “could possibly be adopted by the Justice Department, but we need to tweak it a little bit.” In a court filing on Feb. 11, the city announced that it would create a third majority-black district “to have a total black population in the vicinity of 65 percent.”
Critics of the Section 5 preclearance requirement call it an unwarranted and discriminatory federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.
But Mr. Anderson said he welcomed the process, to a point. “I think it plays a very valuable role, and I think we need it,” he said. “Personally, I think we need it nationwide.”
The problem, he said, is that the provision applies in only some parts of the country. “I think it’s discriminatory because it picks on us Southerners,” he said.
Congress has repeatedly renewed the law, and for a while it used fresher data with each renewal. But when Congress renewed the law for 25 years in 2006, it made no changes to the list of jurisdictions covered by Section 5 and used data from the 1972 election as a baseline.
The law applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states.