President Lyndon B. Johnson presents one of the pens used to sign the Voting Rights Act of 1965 to James Farmer, director of the Congress of Racial Equality on Aug. 6, 1965. The Voting Rights Act was unlike any other law in the way that it singled out for pre-emptive enforcement specific places deemed to have a history of discrimination.
Frank “Butch” Ellis Jr. was sitting in his law office a half-hour’s drive from Birmingham, Ala., about three years ago when Edward Blum, an investment banker turned conservative legal activist, called him to discuss the Voting Rights Act. Although the two had never met, they quickly bonded over a common grievance.
Blum specifically wanted to discuss a provision in the landmark civil rights law requiring localities with a history of racial discrimination to obtain U.S. Justice Department permission to make any changes to their election procedures. Ellis, during nearly a half-century practicing law in Shelby County, had watched municipal clients jump through procedural hoops to gain “preclearance” from Washington lawyers. Moving a polling place could take months, for example, and require a voluminous paper trail.
When Blum suggested that Shelby County officials, with Blum’s financial support, someday might challenge the provision in court, Ellis agreed. “We knew the only way to attack it was in the courts, in Washington,” Ellis explained recently. “We had the desire to do it, we just couldn’t spend our taxpayers’ money on it.”
That conversation was the start of a case that could dramatically alter the scope of the Voting Rights Act, a central feature of President Lyndon B. Johnson’s Great Society program. On Feb. 27, a legal team recruited by Blum will argue before the Supreme Court that the law’s preclearance requirement is an outdated vestige of the Old South that should have been updated or abandoned decades ago.
“The South has changed,” Ellis says. “We’ve changed; the economic situation has changed.”
Whether the justices agree will depend in large part on the record Congress left for the courts when it last reauthorized key parts of the Voting Rights Act in 2006 — specifically, whether lawmakers had enough evidence of discrimination to warrant renewing the preclearance process without substantial revision.
The bill was ushered through a Republican-controlled Congress with limited debate and virtually no public dissent. But some of the same lawmakers who stood by as President George W. Bush proudly signed the reauthorization in a ceremony on the White House grounds just the previous day had signed their names to a revised committee report on the bill that raised serious concerns about the statute and the process by which it had been renewed, even calling the Voting Rights Act a “tool for political and racial gerrymandering.”
Those doubts about the reauthorization, whether the preclearance provision was still needed and, if it was, in what form, could make it easier for the justices to toss it out.
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