News Column

High Court Reconsidering Voting Rights Act

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The stakes in the U.S. Supreme Court's upcoming decision on the Voting Rights Act are momentous, determining the fate of a long-standing civil rights law and potentially opening the way for new state voter ID laws and other measures likely to reduce the voter rolls.

The ruling, which could come Monday, is likely to impact elections around the nation for decades to come.

For Monterey County Supervisor Simon Salinas, the case has a more personal meaning.

In 1993, Salinas was the first Latino supervisor elected in a century in a county where Latinos then made up one-third of the population, and now comprise 55 percent. Four years earlier, he had become the first Latino elected to the Salinas City Council.

Both elections were made possible when the U.S. Justice Department rejected district boundaries drawn by incumbents, finding that they would weaken minority voting. The department was able to intervene because Monterey County is covered by the Voting Rights Act's Section 5, which the Supreme Court may well strike down this week.

Assuring a Voice

The law is "an assurance to minority communities that they have a voice," said Salinas, now one of two Latinos among the county's five supervisors. In March, the board unanimously passed a resolution urging the court to uphold Section 5 as a safeguard for equality in voting.

To its detractors, however, Section 5 is an anachronism and an insult to state and local governments forced to seek federal approval for any change in election procedures because Congress classified them as discriminatory in the 1960s. Most of the areas covered by the law are in the South, although it also applies to Arizona, Alaska and scattered counties elsewhere, including three in California.

"The South has changed" and should not be singled out for punishment, Bert Rein, lawyer for Shelby County, Ala., told the justices at a hearing in February.

The court's conservatives appeared to agree. Justice Anthony Kennedy questioned why states were treated unequally. Chief Justice John Roberts said Mississippi, which is covered by Section 5, now has a higher rate of minority voter turnout than Massachusetts, which is not covered. Justice Antonin Scalia referred dismissively to Section 5 as a "perpetuation of racial entitlement." The 1965 Voting Rights Act prohibited racial discrimination in voting, with a two-track enforcement system. In most of the nation, new election rules -- redistricting, annexations, or changes in voting hours, polling places or voter qualifications -- can be blocked only if the Justice Department or private litigants prove they are likely to suppress minority voting.

But the rules are different for nine states and more than 50 counties nationwide covered by Section 5. They must submit every election-related change to the Justice Department, or a federal appeals court, for clearance before putting them into effect, and have the burden of proving they are not discriminatory.

That's apparently not difficult to prove in most cases -- the department currently rejects fewer than 1 percent of the proposals it reviews. But Section 5 also deters those state and local governments from enacting more far-reaching changes, said Pamela Karlan, a Stanford law professor.

A local government will often decide that "if we change this polling place in a way that makes it harder for minority voters to get there ... the Justice Department's going to object," Karlan said.

At the state level, the Justice Department and federal courts blocked attempts last year by Texas and North Carolina, both covered by Section 5, to require voters to present photo identification. Such laws are likely to proliferate if the federal law is struck down.

Decades-old Criteria

Section 5, which Congress renewed for 25 years in 2006, applies to states and counties that had a literacy test for voters in the 1960s and a low rate of registration or turnout in either the 1964 or 1968 presidential elections. Under a 1975 amendment, it also covers states and counties, none of them in California, that issued English-only ballots in areas with large numbers of voters who speak limited English. Jurisdictions covered by the law can seek removal from its requirements after 10 years of discrimination-free conduct. California had a voter literacy test for more than 75 years, requiring prospective voters to be able to "read the Constitution in English." It was added to the state Constitution in 1894, apparently as an anti-Chinese measure, and struck down by the state Supreme Court in 1970 as a denial of equal protection.

Monterey County, which had less than a 50 percent turnout in the 1968 election, is one of three California counties, along with Yuba and Kings, covered by Section 5.

The law's criteria may seem dated, but their effect in subsequent decades has been profound.

"Section 5 has played a vital role in Latino political empowerment in Monterey County," said attorney Joaquin Avila, who won a 1996 U.S. Supreme Court ruling requiring the county to seek Justice Department approval before combining its Municipal Court districts into a single countywide district.

The department eventually approved that change, but rejected redistricting plans for the county supervisors, as well as for Salinas and the Chualar school district, resulting in districts more favorable to minority candidates, Avila said. Latinos also invoked the law in 2003 to block shutdowns of some polling sites in the county.

"The real strength (of Section 5) is the ability to operate at the last minute," said attorney Robert Rubin, who argued most of those cases and won another U.S. Supreme Court ruling on Monterey judicial districts in 1999. When officials try to change election rules in the weeks before an election, he said, it's usually too late to stop them in counties that don't require Justice Department approval.

'Free Rein' to Discriminate

If the Supreme Court strikes down the law this week, states and local governments would have "free rein to discriminate," said Avila. Although the Voting Rights Act would remain in place, he said, enforcement would be left to a short-staffed Justice Department and to minorities who as plaintiffs usually lack the resources for extensive litigation.

Such predictions might be overstated, said Jesse Choper, a constitutional law professor at UC Berkeley. He said a ruling overturning the law should send a message to Congress to pass a new version with updated coverage standards.

That would be difficult in the current Congress, Choper acknowledged, but "it would depend a lot on the pressure being put on them."


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