A judge for the US District Court for the District of Columbia [official website] heard arguments Wednesday on a new challenge to the Voting Rights Act of Act of 1965 (VRA) [materials]. Arguing before Judge John Bates, officials representing Shelby County, Alabama, together with a corps of conservative activists, argued that it is no longer constitutionally justifiable to subject Alabama and certain other states—virtually all Southern—to Section 5 [DOJ backgrounder] pre-clearance rules under the VRA, requiring them to clear changes in voting districts, polling places and other electoral processes with the Department of Justice (DOJ) [official website] or federal courts. The VRA was enacted to put an end to the systematic disenfranchisement of minority voters that ran rampant in Southern districts in the 1960s. Although the Senate extended the act [NYT report] an additional 25 years by an overwhelming 98-0 vote in 2006, its basis in a legacy of discrimination evidenced more than 45 years ago has gone largely unexamined. Bates expressed doubt [AP report] at the notion that the policy considerations underlying the VRA could be considered salient by the end of the extension, 70 years after its enactment. The DOJ argued that the act remains justified by a continued, observable pattern of more subtle means of racial discrimination at the polls in the Section 5 districts. Civil rights groups point to a 2009 case in which the DOJ invalidated [Birmingham News report] the 2006 redistricting of Calera, Alabama that eliminated the city’s only majority-black district and cost black incumbent Ernest Montgomery his council seat.

Bates’ comments echoed similar sentiments expressed by the Supreme Court [official website; JURIST news archive] last year when it upheld [opinion, PDF; JURIST report] a controversial provision of the VRA in Northwest Austin Municipal Utility District Number One v. Holder [Cornell LII backgrounder]. In that most recent challenge to the VRA, the court voted 8-1 in favor of permitting the appellant municipality to “bail out” from the Section 5 pre-clearance requirement if it can establish a history of compliance with the VRA, but declined to rule on the constitutionality of the 25-year extension of the act. Writing for the majority, Chief Justice Roberts opined that “things have changed in the South,” observing that “[b]latantly discriminatory evasions of federal decrees are rare.” The plaintiff was a municipal utility district in Texas that wanted to be exempted from the requirement and was challenging the most recent extension generally. At their enactment in 1965, the requirements were only supposed to be in place for five years. Section 5 has since been extended several times.