by Mark Sherman
The Associated Press
The Supreme Court’s conservative justices led a sustained attack Wednesday on a key element of the Voting Rights Act that calls for states with a history of discrimination to get advance approval of changes in the way elections are conducted.
Justice Anthony Kennedy, whose vote may well decide the challenge to the provision, acknowledged that the advance approval, or preclearance, requirement has been successful in rooting out discrimination in voting over the past 44 years. But times have changed, Kennedy said.
"The question is whether it can be shown to be justified," he said, when other states can make changes without having the Justice Department sign off on them.
Kennedy said defenders of the law have a substantial burden in showing the continuing need for the "great disparity in treatment" between states.
Congress’ decision in 2006 to extend the provision for 25 years is at the core of the case from Texas that was argued Wednesday, the final argument of the court’s term. The requirement applies to all or parts of 16 states with a history of discrimination in voting.
The court is being asked by a small Texas community to strike down the extension as an unconstitutional intrusion into the domain of state and local governments that have made substantial progress since the era of Jim Crow and government-sponsored discrimination.
The court’s liberal justices strongly defended Congress’ actions, which included amassing evidence of ongoing discrimination.
"I don’t understand with a record like that how you can maintain ... that things have radically changed," Justice David Souter said, acknowledging that there has been progress.
The justices could find a way out of the case without ruling one way or the other on the constitutional issue. They could determine that the Texas community, Northwest Austin Municipal Utility District No. 1, no longer has to comply with the advance approval requirement.
For the only time this term, the justices made available audio recordings immediately after the arguments.
The voting rights law, enacted in 1965, has helped open elections to millions of blacks and other minorities. Its main enforcement measure is a temporary one that calls for the federal government to sign off before election changes.
Congress has renewed the provision four times, most recently by an overwhelming vote in 2006, when both houses were controlled by Republicans. President George W. Bush signed it into law.
The utility district agrees that Southern states once richly deserved the federal intrusion into their election practices. But that day has passed, especially with the election of President Barack Obama, the district says.
The law is outmoded, relying on information dating back more than 40 years to determine which states and municipal governments are covered, the district says. The district’s challenge is backed by a group that opposes racial classifications in employment, voting and education.
The Obama administration and civil rights groups argue that the law is still needed to prevent discriminatory election changes and that Congress gathered substantial evidence in support of its position.
A federal court in Washington upheld the law, setting up the Supreme Court fight.
The case is Northwest Austin Municipal Utility District No. 1 v. Holder, 08-322.