WASHINGTON The Supreme Court on Wednesday will consider whether to strike down a key provision of a federal law designed to protect minority voters.
During the one-hour oral argument, the nine justices will hear the claim made by officials from Shelby County, Alabama, that Section 5 of the Voting Rights Act is no longer needed.
The key issue is whether Congress has the authority under the 15th Amendment, which gave African Americans the right to vote, to require some states, mainly in the South, to show that any proposed election-law change would not discriminate against minority voters.
Conservative activists and local officials in some jurisdictions covered by the provision have long complained about it, saying that it is an unacceptable infringement on state sovereignty.
Hans von Spakovsky, a senior legal fellow with the conservative Heritage Foundation who formerly worked in the Justice Department's civil rights division, said that the "terrible history" that warranted Section 5's intrusion on state authority was over.
"There's no evidence to show that these covered areas are somehow in worse shape than other parts of the country," said von Spakovsky, who with eight other officials from Republican administrations submitted a brief siding with the Shelby County officials.
The Obama administration, backed by civil rights activists, is fighting to save the provision. Solicitor General Donald Verrilli, the administration's top advocate, will be arguing the case. Last year, he argued successfully in defense of President Barack Obama's 2010 healthcare overhaul.
Defenders of the law challenge the conservative reading of recent history, pointing in part to litigation prior to the 2012 election, including two cases out of Texas. Federal courts blocked a strict new voter-identification law and a redistricting plan, saying they would hurt minority voters. Both cases are ongoing.
"Without Section 5 of the Voting Rights Act, worse laws would be in place and the fundamental rights of many Americans would be diminished," Senator Patrick Leahy, a Vermont Democrat, the chairman of the Senate Judiciary Committee and a supporter of the provision, said on Tuesday.
Although the Voting Rights Act was originally passed in 1965 at the height of the U.S. civil rights movement, the precise question before the justices concerns the version that Congress reauthorized in 2006.
Congress concluded then that the part of the law that is disputed, known as the "preclearance provision," requires nine designated states (and parts of seven others) to seek federal approval before making any election-law changes, such as for voter-identification rules or in district boundaries.
The states that are fully covered are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.
Those states split on whether the provision undercuts their sovereignty in an unacceptable way, although most think it does. Alabama, South Carolina, Arizona, Georgia, Alaska and Texas all want the court to strike down the provision.
Mississippi is the only one to have filed a brief in support of the law, although both Virginia and Louisiana have opted to remain silent.
The Supreme Court tackled the constitutionality of Section 5 four years ago in a case out of Texas. The court avoided the major issue and decided the case on narrow grounds, but it was clear from the majority opinion that the issue was likely to make a return to the high court.
Chief Justice John Roberts wrote in the opinion that he, for one, had doubts about the provision's long-term future.
"Things have changed in the South," he said. Voter turnout and registration rates in both covered and uncovered states are roughly the same, he noted, and "blatantly discriminatory evasions of federal decrees are rare."
For interested observers, like Elizabeth Wydra, an attorney with the progressive Constitutional Accountability Center who filed a brief in support of the provision, Roberts' comments were particularly striking.
"Given the skepticism that Roberts expressed, he certainly is one to watch in terms of striking down the preclearance provision," she said.
With Justice Anthony Kennedy, the court's most regular swing vote, having also stated some concerns during the argument in the 2009 case, lawyers on both sides will also be keeping a close eye on him, Wydra added.