The landmark 1965 Voting Rights Act has been the law of the land for nearly half a century, removing barriers for generations of black voters in the South. But one of its key provisions still sparks controversy.
The law requires the Justice Department to preapprove changes made to election procedures in states with a history of racial discrimination. Many conservatives say that any need for the law has long since passed, and this month, they got a boost. A federal appeals court in Washington, D.C., allowed a constitutional challenge to the preapproval language to move forward.
The current federal oversight rankles many of today's conservatives.
"You have the federal government having to approve things, laws and ordinances, that are passed by local governments and state governments. You don't see that in any other area," says Hans von Spakovsky, a former Justice Department official under President George W. Bush.
Von Spakovsky and another former Bush Justice Department official, Robert Driscoll, point out that the preapproval process was never supposed to be permanent. But today, parts of 16 states, most of them in the South, operate under a form of federal receivership based on minority voter turnout data gathered in the 1960s.
"This was needed in 1965, because in 1965 there was systematic discrimination in the South against black voters. But there's no one that can show there's anything like that today," von Spakovsky says.
Chief Justice John Roberts also raised doubts about the Justice Department's preapproval authority under Section 5 of the Voting Rights Act in a Supreme Court ruling two years ago. The high court didn't rule on the issue directly in that case. But since then, lawyers have been looking for another way to present the question to the high court. Thanks to a recent lower court ruling, they may have found it.
Earlier this month, a federal appeals court in D.C. allowed a Republican candidate in the small town of Kinston, N.C., to move forward with his lawsuit, challenging the federal government's power to force its elections law decisions on states.
"The Voting Rights Act has been a crown jewel of the civil rights movement, and for the court to say that Congress doesn't have the power to step in and require this kind of federal review of voting rules would be a dramatic shift in how the court views the federal state balance," says Rick Hasen, a professor of election law at University of California, Irvine.
But election lawyers like Democrat Gerry Hebert of the nonpartisan Campaign Legal Center say the threat of a Supreme Court case is already making a difference.
"Many of us feel that the Justice Department is too concerned with the fact that the Supreme Court will strike down the act, and so, maybe doesn't enforce it as vigorously as it should, because it's concerned that if it's accused of overreaching, that the Roberts court will strike the act down," Hebert says.
It's unclear whether striking down the preapproval section of the act would endanger the entire law. But it would almost certainly give new determination to those who want to strike down the full act on the grounds that these decisions should be left to the states.
For the past several years, experts say, the Justice Department has approved the vast majority of voting changes it reviews under the pre-clearance rules. So far this year, it's given a green light to election changes in Louisiana and Virginia. But most of the state and local redistricting plans — more than 2,000 in the covered areas — haven't arrived on the department's doorstep.
In one of the most closely watched tests of the reach of the Voting Rights Act this year, Texas has just submitted its proposed redistricting changes to a federal court—not the U.S. Justice Department—for approval. Some Republican governors and attorneys general have advocated bypassing the Obama administration, arguing that they will get a less politicized answer from the courts, even though a Justice Department spokeswoman says the Attorney General has objected to only about "1 percent" of the proposals since the law was enacted.
Hasen says he'll be watching how the Department of Justice handles the redistricting plans.
"This is the first time that a Democratic administration will be in charge of the Department of Justice during one of these redistricting periods, putting aside the Johnson administration," he says.
Supporters of the Voting Rights Act say the law and the Justice Department still play an important role in protecting minority voters. Congress seemed to agree back in 2006 when it renewed the Voting Rights Act and the preapproval process for 25 more years.
Driscoll, the former Bush Justice Department official, says that process was never intended to be permanent. "And so the real question is do the distinctions that existed in 1965 exist now that would justify disparate treatment in different parts of the country?" he asked.
But as the North Carolina case makes its way toward the Supreme Court, it becomes more likely that the future of the law will be determined by the courts, not the voters.