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Voting Rights Act is challenged as cure the South has outgrown

By ADAM LIPTAK

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EVERGREEN, Ala. » Jerome Gray, a 74-year-old black man, has voted in every election since 1974 in this verdant little outpost of some 4,000 people halfway between Mobile and Montgomery. Casting a ballot, he said, is a way to honor the legacy of the Voting Rights Act of 1965, a civil rights landmark born from a bloody confrontation 70 miles north of here, in Selma.

The franchise remains fragile in Evergreen, Gray said. Last summer, he was kicked off the voting rolls by a clerk who had improperly culled the list based on utility records. A three-judge federal court in Mobile barred the city from using the new voting list, invoking a main provision of the Voting Rights Act.

That provision, called Section 5, is also at the heart of one of the marquee cases of the Supreme Court's term, Shelby County v. Holder, No. 12-96, which will be argued on Feb. 27. It was brought by Shelby County, near Birmingham, and it contends that the provision has outlived its purpose of protecting minority voters in an era when a black man has been re-elected to the presidency.

The Voting Rights Act was a triumph of the civil rights movement. It was a response, the Supreme Court said in upholding it in 1966, to "an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution."

Congress was entitled, the court went on, "to limit its attention to the geographic areas where immediate action seemed necessary."

Congress did so by requiring many state and local governments, mostly in the South, to get advance permission from the Justice Department or from a federal court in Washington before making changes that affect voting. Lawmakers chose the areas to be covered based on a formula that considered whether they had used devices to discourage voting, like literacy tests, and data from the 1964 election.

The court in Mobile this month said the case before it, concerning Evergreen, was simple: Because the city had not obtained permission from federal authorities, it could not revise its voting list using utility records. Nor could it use a municipal redistricting plan enacted by the City Council that had concentrated blacks voters, who are in the majority, into just two of the five districts, limiting black voting power.

It is not clear when the municipal election, originally scheduled for August 2012, will be held.

A lawyer for Evergreen, James H. Anderson, said the ruling was justified.

"The way the voter list was recomposed was improper," he said. He added that the redistricting plan "could possibly be adopted by the Justice Department, but we need to tweak it a little bit." In a court filing on Feb. 11, the city announced that it would create a third majority-black district "to have a total black population in the vicinity of 65 percent."

Critics of the Section 5 preclearance requirement call it an unwarranted and discriminatory federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.

But Anderson said he welcomed the process, to a point.

"I think it plays a very valuable role, and I think we need it," he said. "Personally, I think we need it nationwide."

The problem, he said, is that the provision applies in only some parts of the country.

"I think it's discriminatory because it picks on us Southerners," he said.

Congress has repeatedly renewed the law, and for a while it used fresher data with each renewal. But when Congress renewed the law for 25 years in 2006, it made no changes to the list of jurisdictions covered by Section 5 and used data from the 1972 election as a baseline.

The law applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states.

Should the Supreme Court rule that Congress was not entitled to rely on old data to decide which jurisdictions should be covered, lawmakers could in theory re-enact the law using more current information. In practice, a decision striking down the coverage formula would probably amount to the end of the preclearance requirement.

In the rest of the country, objections to changes in how elections are run take the usual course, with after-the-fact lawsuits under another part of the law.

"In many places," said Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, "the case-by-case method of vindicating voting rights for minority citizens was not up to task."

Section 5, he said, "shines daylight on the dark rooms where these political redistricting decisions are happening" and "it makes sure you're dealing the cards off the top of the deck."

Gray is a slender, intense man with wiry gray hair and a slight goatee. He served for almost 30 years as state field director of the Alabama Democratic Conference, and he has seen his share of history.

He lives across the street from the high school he graduated from in 1955, when it was reserved for blacks. The movie theater was segregated, too.

"You had to go down an alley and up the stairs" to a balcony reserved for blacks, he said. "We called it the buzzards' nest."

"We had no black elected officials anywhere," he said. To vote, he said, "blacks had to get a written statement from a white businessman to say they were ‘a good Negro."' Whether the statement was thought adequate was up to the whim of a white sheriff.

Things are better now, of course, but Gray says intimidation can take many forms.

"As recently as the 2008 municipal runoff election between a white candidate and a black candidate for mayor," Gray said in a recent court filing, "I witnessed white men standing in the beds of pickup trucks systematically photographing black voters as they approached the polls at each voting location in Evergreen."

The challenge in the Supreme Court was brought by Shelby County. It is 90 percent white and as prosperous as Evergreen is poor.

In its brief in the case, the county acknowledged that "the Voting Rights Act of 1965 changed the course of history in the covered jurisdictions" but said the disputed parts of the law "have accomplished their missions."

In a supporting brief, Alabama said it had "more than earned its spot on Section 5's original coverage list in 1965" through "violence and willful defiance of federal law."

"But that was a long time ago," Alabama's brief said. Black voter registration and turnout are high, it said, and the racial mix in the Legislature reflects the state's population.

In 2009, when the Supreme Court last considered the issue in Northwest Austin Municipal Utility District Number One v. Holder, Chief Justice John G. Roberts Jr. made similar points. But that 8-to-1 decision did not end up ruling on the larger questions in the case.

Instead, the court ruled on a narrow statutory ground, saying the utility district in Austin, Texas, that had challenged the constitutionality of the law might be eligible to "bail out" from being covered by it. Still, Roberts seemed skeptical about the continued need for Section 5.

"Things have changed in the South," he said.

"The statute's coverage formula is based on data that is now more than 35 years old," he added, "and there is considerable evidence that it fails to account for current political conditions."

In the last presidential election, courts relied on Section 5 to block voter identification requirements and cutbacks on early voting in covered jurisdictions.

Gray, for his part, said recent events in Evergreen proved that there was still a vital role for the Voting Rights Act's central innovation.

"Section 5 allowed us to stop an election that would have been a disaster," he said. "We need Section 5 because there are still bad actors, and Evergreen is one. They had removed almost 800 people from the voting rolls, including Jerome Gray."






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