Voting Rights Act: Do we still need it?

Richard Wolf, USA TODAY | USATODAY

PHILADELPHIA, Miss. — The murders of three young civil rights workers bent on registering black voters during 1964's "Freedom Summer" still haunts this tiny town in central Mississippi.

Jewel Rush McDonald shudders at the thought of the beatings her mother and brother endured at the hands of the Ku Klux Klan five days before the murders. Stanley Dearman bemoans the four decades it took to get even one manslaughter conviction, and only after he badgered state officials in his weekly newspaper.

James Young recalls the tension of being the only black pupil in his elementary school class at the time of the murders, when poll taxes and literacy tests helped keep 95% of eligible blacks in Mississippi from voting. After dark in those days, he says, "we were told to be in the house."

But "things have changed in the South," Supreme Court Chief Justice John Roberts said June 22, 2009, almost 45 years to the day since the murders. It was one line in the court's most recent decision on the Voting Rights Act of 1965, and though it kept the law largely intact, Roberts warned the act's days might be numbered.

Eleven days later — as if to make Roberts' point — Young took office as the first black mayor of Philadelphia (population 7,513). The 57-year-old paramedic and pastor seeks re-election this spring — and two white Democrats have switched to the Republican Party to oppose him.

Therein lies the paradox facing the Supreme Court next week, when it hears the latest and most significant challenge to the Voting Rights Act passed in the wake of the blood shed here and throughout the South nearly a half-century ago. The law outlawed the types of voting practices that were common in many states and set up legal and regulatory processes to overturn them.

The South indeed has changed; whether it's changed enough to warrant a major blow to the Voting Rights Act will be decided by the nine high court justices this spring.

In a 3-year-old case from Alabama, the court is being asked to throw out Section 5, the steel spine of the law. It forces nine states with a history of racial discrimination — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and municipalities in seven others to get federal approval for any changes in voting procedures. Debo Adegbile, a civil rights lawyer who will help defend the law in court alongside the Justice Department, calls it "perhaps the mothership of congressional civil rights statutes."

It's this provision that most recently ensnared nearby Clinton, Miss., a Jackson suburb that's one-third black but is governed by an all-white Board of Aldermen. Its first effort to redraw ward lines after the 2010 Census was rejected by the U.S. Department of Justice, forcing more innovative artwork to produce one ward with a 56% black population. Over time, that has become a central focus of Section 5 — creating districts that black and Hispanic candidates can win.

The changing South symbolized by Young's election is at the heart of the case, but the bigger test for civil rights proponents defending Section 5 in Shelby County v. Holder involves the North, East and West as well. What most bothered several of the high court's justices in the last case in 2009, which made it easier for municipalities to escape federal oversight, was the formula Congress used to populate Section 5 — one that has remained essentially unchanged for more than 40 years.

Armed with that formula, based on voting practices and participation rates from 1964, the Department of Justice continues to clash with Clinton and other municipalities in Mississippi, Georgia, Texas and elsewhere — much to the chagrin of the South's white politicians and public officials.

"You want to know the truth? DOJ's stuck in 1964," says Clinton Mayor Rosemary Aultman, who's stepping down after 20 years leading the city of 25,518. "We've all moved on."

But the South hasn't moved fast enough or far enough to satisfy either the national civil rights groups waging a ferocious effort to save Section 5 or the black (and occasionally white) veterans of the movement in Mississippi.

"Without the federal intervention, we would not have what we have today," Young says. "Whether it's overbearing now, I'm not here to judge. I'm just here to say I am a recipient of what fair voting laws should do, and that is give every individual a level field."

Law survives, but not intact

The law President Lyndon Johnson signed a little more than a year after the Philadelphia murders paved the way for legal challenges to discriminatory voting practices that are not jeopardized by the current lawsuit. At stake is the section that divided the nation, subjecting a minority of states and municipalities to direct federal supervision.

Reauthorized in 1970, 1975, 1982 and 2006, Section 5 is viewed as a savior of black and Latino voting rights by some and an anachronistic scarlet letter by others. When Congress last voted to extend it until 2031 — by overwhelming votes of 390-33 in the House and 98-0 in the Senate — it cited about 2,400 proposed voting changes blocked during the previous quarter-century.

In his 2008 campaign speech on race, Barack Obama pointed to the lessons of history. "The legacy of discrimination — and current incidents of discrimination, while less overt than in the past — are real and must be addressed," he said. Among his suggestions: "enforcing our civil rights laws."

The Supreme Court took its first bite of the law in 2009, ruling that a Texas water district — and any municipality, for that matter — could bail out of Section 5 by demonstrating 10 years of good behavior; more than 200 municipalities have done so since the law's inception. The court punted on the broader question of its constitutionality.

"The historic accomplishments of the Voting Rights Act are undeniable," Roberts wrote for the court, citing voter registration and turnout levels and "unprecedented" numbers of minority elected officials. But he warned that "the act's pre-clearance requirements and its coverage formula raise serious constitutional questions."

The court's lone black justice went further. "The extensive pattern of discrimination that led the court to previously uphold Section 5 ... no longer exists," Clarence Thomas wrote in partial dissent. "There is no evidence that public officials stand ready, if given the chance, to again engage in concerted acts of violence, terror and subterfuge in order to keep minorities from voting."

Last year's election cycle, while lacking in violence and terror, did feature what civil rights groups say were state efforts at electoral subterfuge. In Texas, Florida and South Carolina, the Voting Rights Act helped block photo ID laws, redistricting maps and limits on early voting that could have hurt minorities the most.

"States are pushing the envelope in their efforts to suppress the vote, here in Florida and in other states," says Florida state Sen. Arthenia Joyner, a leader in the National Black Caucus of State Legislators.

The new case comes to the high court with two lower court strikes against Shelby County's challenge. In the most recent decision, the U.S. Court of Appeals for the D.C. Circuit ruled last May that the coverage formula "is not perfect, but the fit was hardly perfect in 1965."

The Obama administration's brief warns the court not to mess with Congress' legislative authority. "Invidious racial discrimination is the most pernicious form of governmental discrimination prohibited by the Constitution," Solicitor General Donald Verrilli wrote. That puts Congress "at the zenith of its constitutional authority."

Hans von Spakovsky, former counsel to the Justice Department's civil rights division, says there is nothing left for Congress to authorize. "There isn't anybody who can rationally claim today that that kind of widespread, official discrimination still exists," he says.

What's more, the types of state and local election laws that continue to draw fire from civil rights groups "exist to a greater degree outside those covered jurisdictions than they do inside the jurisdictions," says Edward Blum, director of the Project on Fair Representation, which solicited the lawsuits from both Shelby County and Abigail Fisher, a plaintiff seeking to overturn the University of Texas' affirmative action program.

Clinton's fight with the Justice Department is typical of many. Its first effort to redraw ward lines after the 2010 Census was rejected. The department noted that the city's black population had doubled in 20 years, but the redistricting plan "unnecessarily" split up black voters so no ward was more than 43% black.

City officials redrew the lines, but they resented being cast as racists. "In the world I live in — my neighborhood's 50% black — that thought doesn't cross my mind," says Alderman Mike Cashion, whose ward boasts a black majority. To date, he has not drawn opposition for the spring election.

'Sacred ground'

If there was a poster child in 1964 for the racism and voting discrimination that gave rise to the Voting Rights Act, Philadelphia, Miss., was it.

The civil rights activists slain that warm June night weren't just victims of the Klan; the sheriff's office and Highway Patrol assisted in the coverup. It took 41 years to the day before anyone was convicted of a crime greater than conspiracy.

James Chaney, Andrew Goodman and Michael Schwerner are revered by the civil rights workers who have taken up the mantle of change, just as they were memorialized by Martin Luther King Jr. and Ralph Abernathy during a voter registration march here on the second anniversary of their deaths.

"They said if they could change Mississippi, they could change any state in the union," says Leroy Clemons, a Philadelphia resident and director of community relations for the William Winter Institute for Racial Reconciliation.

Standing outside Mount Zion Church, which burned in 1964 days before the murders, Clemons says, "This place is like sacred ground to members of the civil rights community, civil rights veterans. They come out here every year. It's like a pilgrimage."

The question is not whether the South has changed, but how much, and whether it's enough.

In his 2008 speech on race, Obama quoted the writer William Faulkner, a Mississippi native: "The past is never dead. It's not even past."

Hogwash, says former Mississippi governor Haley Barbour, a Republican who spoke in 2004 at an event in Philadelphia to mark the 40th anniversary of the murders.

"Over 50 years, we've gotten that behind us," Barbour says, insisting the South deserves equal treatment. "The same rules ought to apply to Massachusetts, Minnesota and Montana that apply to Mississippi."

Disagreement on progress

Barbour's view is shared by James Prince, publisher of the weekly Neshoba Democrat, which serves Philadelphia. The white and conservative Prince helped organize the multiracial Philadelphia Coalition that helped the community heal its wounds and pursue legal justice a decade ago.

"I would submit that the pre-approval, pre-clearance is out of date. It was needed at one time," Prince says. "We've got a lot more problems to worry about than having the Justice Department come in and approve lines."

Prince's predecessor, Dearman, the liberal white publisher whose persistence in seeking prosecution helped lead to Klan ringleader Edgar Ray Killen's manslaughter conviction in 2005, disagrees.

"We've seen Philadelphia go from a racially divided, bitter, ugly town to a place with a black mayor," Dearman, 80 and retired, says with satisfaction in his book-cluttered living room. Even so, he says, racism among older residents "is so ingrained, it's almost genetic in its depth."

Blacks here aren't ready to let Section 5 go — not even with a 72% black voter registration rate, the highest percentage of black state legislators (29%) in the nation, more than 300 black state legislators in the South and about 12,000 black elected officials nationwide. Philadelphia has as many blacks as whites, as well as a sizable Native American population.

Mayor Young agrees that the law should be retained for now, but he says the need for federal protection may be on its way out.

"Philadelphia and Neshoba County are not to be feared anymore," he says. "We have issues just like anybody else, but you can't stick it on race."