Courts to rule on fate of Georgia’s ‘badge of racism’

John Lewis saw the blue sea of Alabama state troopers advancing with their horses and their nightsticks, saw them putting on gas masks and wielding bullwhips, saw everything until a trooper slammed his club into Lewis’ head. After that, he doesn’t remember what happened on “Bloody Sunday” on the Edmund Pettus Bridge.

In response to the brutality in Selma, Congress passed and President Lyndon Johnson signed the landmark Voting Rights Act of 1965.

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Nearly a half-century later, when Jim Crow laws are a distant memory and Barack Obama sits in the White House, many believe that one of the key provisions of the Voting Rights Act is obsolete. They’ve argued the matter all the way to the U.S. Supreme Court, which could rule as early as this week.

At issue is Section 5 of the act, which requires Georgia, eight other states and parts of seven others with a history of discrimination to obtain federal permission before making changes to voting procedures. Under Section 5, a special unit of the Justice Department must review all such changes, from moving a polling site a few blocks down the street to remapping a state’s congressional districts.

Thinking back on Selma and the laws that grew from that confrontation, Lewis, the Democratic congressman from Atlanta, recalled last week, “It was the galvanizing moment that brought together the power of the federal government, the president of the United States and the demand of the American people that we do something to make it possible for all of us to participate in the voting process.”

Since the Voting Rights Act of 1965 was signed into law, the number of black elected officials nationwide has risen from fewer than 280 to more than 10,000 today. Four of Georgia’s 13 members of the U.S. House are black. African-Americans preside as the state’s attorney general, its labor commissioner and chief justice of its Supreme Court.

Georgia Republicans, many of whom opposed the 25-year renewal of the Voting Rights Act by Congress in 2006, cite the current political landscape as a reason Georgia voting districts should no longer face federal scrutiny.

Gov. Sonny Perdue felt so strongly, he filed his own legal brief in the current case, urging the justices to overturn Section 5.

“It is indisputable and undisputed that barriers once existed for black voters in Georgia, both with respect to registration and turnout,” said Perdue’s brief. “Those barriers, however, clearly do not exist now.”

The governor worried that “the Section 5 badge of racism” will loom over Georgia forever. “In short, once a racist state, always a racist state.”

Georgia Secretary of State Karen Handel, herself a candidate for the 2010 Republican nomination for governor, took Perdue’s arguments a step further.

Section 5, she said last week, was an emergency statute enacted to address problems that existed 44 years ago. She describes it now as “pure politics in its worst form and a ridiculous solution in search of a problem that left the South decades ago.”

But Ted Shaw, former president of the NAACP Legal Defense and Educational Fund, said Section 5 is an important deterrent to electoral mischief and a safeguard that ensures changes in voting schemes do not have a discriminatory purpose or effect.

“Because of it, we’ve gotten to the point of where we are today,” said Shaw, now a Columbia University law professor. “Without it, Barack Obama would not be in the White House.”

In a March interview with various newspapers, Obama supported continued oversight. “You don’t just leave it up to the states to self-correct,” he said.

Requiring Justice Department approval of voting changes in the covered states “is not such a huge hurdle to jump through. It’s legitimate to err on the side of caution before you start eliminating that requirement,” he said.

Laughlin McDonald, director of the ACLU’s voting rights project, said if the provision is declared unconstitutional, voters may still file suit if they believe voting changes are discriminatory. But few plaintiffs will have the financial wherewithal to pursue such litigation, he said.

McDonald cited a recent Georgia case as “Exhibit No. 1” in support of the continued need for Section 5.

In 2007, Handel created a system using a state database to verify voters’ identity and citizenship to meet the requirements of the Help America Vote Act.

The Justice Department’s civil rights division has rejected the verification procedure, finding it to be “seriously flawed.” The system mistakenly flagged thousands of eligible Georgia voters, a disproportionate share of whom were minority voters, Loretta King, acting assistant attorney general, told the state on May 29.

Handel called this decision a political one, noting the Obama administration oversees the Justice Department. (The department’s inquiry began under the Bush administration last fall.)

This marked the 172nd time the Justice Department has objected to a change in a Georgia voting procedure since the 1965 act.

Opponents have sought to overturn Section 5 almost since it was enacted. In 1966, a challenge by the state of South Carolina was turned back by the Supreme Court in an 8-1 decision.

“There’s been controversy over this from the beginning, but very few people have said Congress lacked the power to require these jurisdictions to get preclearance,” said Rick Hasen, a professor at Loyola Law School. “For the Supreme Court to strike down one of the crown jewels of the civil rights movement would be monumental.”

The Section 5 challenge before the court involves an obscure utility voting board in Austin, Texas, that was created two decades after the Voting Rights Act was signed into law. But because it’s in Texas, one of the states covered by the act, the board required Justice Department approval when it moved a neighborhood polling place from a resident’s garage to a nearby elementary school.

During oral arguments in April, the court’s conservative justices were skeptical that the law makes sense in 2009. And Justice Anthony Kennedy, seen as the critical swing vote, also questioned the need for the law.

“There had been unremitting and ingenious defiance,” Kennedy said of the Jim Crow era. “Democracy was a shambles. … That’s not true anymore.”

Kennedy noted that 30 attorneys in the civil rights division are needed to oversee the “preclearance” process, and he cited congressional testimony that said the states and local jurisdictions have spent $1 billion over 10 years to comply with the law.

Chief Justice John Roberts compared the enforcement tool to an “elephant whistle” on the grounds that 99.98 percent of all requests to change voting procedures get preclearance.

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

Roberts added, “I mean, at some point, it begins to look like the idea is that this is going to go on forever.”

John Lewis was among those watching and listening in the courtroom. Last week, he acknowledged that the arguments did not go well.

“No one can deny the fact we’ve made progress,” he said. “But that’s not the question. That’s not the issue. The issue is we need this tool to guard against the possibility of reverting back to our dark past.”

Obama has assembled a team of Justice Department lawyers to prepare a response to a possible 5-4 vote overturning Section 5.

In a recent speech in Washington, U.S. Attorney General Eric Holder said that, “no matter how the court resolves the issue,” the Justice Department will enforce the nation’s voting rights laws.

“Our commitment to equal protection — and to full participation in our nation’s elections — will not waver,” he said.

Atlanta attorney Lee Parks, an expert on voting rights law, said the high court may not issue a ruling that hands a sweeping victory to either side of the issue.

The court could invalidate the law on narrow grounds, such as the failure by Congress to consider current election data when passing the 25-year extension.

This would open the way for Congress to fix it, he said, by limiting the role of preclearance “to the important stuff, like reapportionment and a citizenship check of which disenfranchised thousands of primarily minority voters this time around.”