While a bipartisan majority of lawmakers won the battle over a controversial provision of the Voting Rights Act (VRA), they could very well lose the war — this time, in front of the U.S. Supreme Court.

As oral arguments were held two weeks ago in D.C. District Court, the stage is set for the most dramatic development in the history of the VRA: a Supreme Court finding that Section 5 — widely recognized as the cornerstone of the legendary civil rights law, which mandates pre-approval for electoral changes in areas with histories of racial disenfranchisement — is unconstitutional.

Edward Blum, a visiting scholar with the American Enterprise Institute who led the effort to bring the challenge to federal court, contends that the lack of evidence pointing to systematic racial disenfranchisement makes Section 5 “no longer necessary as it was in 1965,” rendering it unconstitutional under the “congruence and proportionality” doctrine, which prohibits overly broad legislation.

David Becker, senior staff attorney with People for the American Way, argued that “when you look at the actual record, there has been continued racial discrimination in Section 5 jurisdictions,” citing a Texas redistricting scheme, struck down by the Supreme Court last year, that shifted 100,000 Hispanic voters out of District 23.
Becker added that a successful challenge in the Supreme Court would pave the way for electoral policies that would result in disenfranchisement, specifying voter-ID legislation, the blocking of secondary-language materials and the relocation of polling places and calling such a prospect a “remarkable statement of activism.”

The suit involves a Texas municipality, the Northwest Municipal Utility District 1, which was denied approval, or “preclearance,” from the Department of Justice (DoJ) after deciding to hold elections in an elementary school, ending 20 years of elections being held in private residences.

Under Section 5, preclearance can occur only if DoJ or a federal court finds that the electoral policy does not have the purpose or the effect of denying or abridging the right to vote on the basis of race. Nine states in their entirety are subject to preclearance, including Texas, Georgia and Virginia, while areas of New York, California and Florida are also subject to Section 5.

Because oral arguments were conducted in front of a three-judge panel, the defeated party will be able to — and will likely — appeal directly to the Supreme Court, which started its session Monday. Though the challenge only relates to the provision’s application on the Texas municipality, a successful Supreme Court challenge will lead to many similar challenges in federal courts. In addition to striking down Section 5, the high court could also suggest to Congress how to amend the provision so that it passes constitutional muster.

Chris Ward, one of the attorneys who brought the challenge, stated that he believed the D.C. District Court would render a decision fairly quickly, allowing the Supreme Court to hear the case in the upcoming session and prior to the 2008 elections, while claiming that the timetable would not affect the races.

Section 5 submissions have recently stemmed from several states that will likely serve as battlegrounds for the 2008 races, including Florida and New Hampshire.

A successful challenge to Section 5 could also signal the removal of a significant obstacle to photo-ID programs in Georgia, Arizona and Mississippi, all covered under Section 5.

Supporters of Section 5 may decide to introduce legislation to change the coverage formula of the VRA in order to make the challenge moot, which would cut off the Supreme Court’s ability to hear the matter.

Blum and other conservative legal activists decided to bring a challenge in federal court after Section 5 was renewed with passage of the VRA reauthorization bill last July. The reauthorization occurred in spite of the legislation’s stalling after several GOP lawmakers, including now-House Judiciary Committee ranking member Lamar Smith (Texas) as well as Reps. Lynn Westmoreland (Ga.) and the late Charles Norwood (Ga.), brought their concerns over the provision to then-Judiciary panel Chairman James Sensenbrenner Jr. (R-Wis.). Texas and Georgia currently provide the largest proportion of Section 5 submissions.

Despite the bill’s garnering 390 votes in the House and 98 votes in the Senate, some lawmakers had major concerns with Section 5. Sens. John Cornyn (R-Texas) and Tom Coburn (R-Okla.) stated in the Senate Judiciary Committee report accompanying the legislation that, while they supported the bill generally, “the record of evidence does not appear to reasonably underscore the decision to simply reauthorize the existing Section 5 coverage formula,” a formula that includes voter registration and turnout data from the 1964, 1968 and 1972 elections and has not been modified since 1975. Neither office responded to calls for comment by press time.

A GOP source close to the reauthorization contended that some Section 5 opponents chose to vote in favor of the bill with the belief that it would be struck down in federal court.

According to the Senate report, seven of the nine covered states produced black voter registration rates that exceeded the national average, while several states showed black registration and voting rates that exceeded those of white voters in the 2004 elections. Conversely, Latinos were shown to register and turn out at substantially lower rates than whites, with this disparity hovering at 30 percent.

The entire Democratic delegation, however, filed an opposing view in the committee report, asserting that it “does not make any findings based on the extensive record created in both the House and Senate.”

The challengers are placing their hopes on Justice Anthony Kennedy to swing towards the conservative bloc of the high court. Blum contends that Kennedy may very well side with conservatives because he was the architect of the congruence and proportionality doctrine, the cornerstone of their legal challenge.

Samuel Issacharoff, a professor of constitutional law at New York University, claimed that Kennedy’s support could not be taken as a given, arguing that the doctrine has never been applied to core rights such as voting.