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40-Year Plan

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Despite some predictions to the contrary, few doubt that Congress will reauthorize key provisions of the 1965 Voting Rights Act before they expire in 2007.

But there is considerable doubt–and debate–over exactly what the 21st century version of the law will look like, as some of the old civil rights battles fade away and new challenges emerge.

So participants in an ABA Annual Meeting program marking the law’s anniversary wasted little time dwelling on the past and instead focused on the future. The panel was held on Aug. 6, exactly 40 years to the day after Pres­ident Lyndon B. Johnson signed the law.

The Voting Rights Act enforces the 15th Amendment, which guarantees the right to vote, by banning literacy tests, and outlawing racially and ethnically motivated intimidation of people attempting to exercise that right.

A significant provision subject to sunset in 2007 is the “preclearance” requirement that jurisdictions in all or parts of 16 states obtain prior approv­al either from the Justice Department or the U.S. District Court in Washington, D.C., before making any changes in their electoral systems, such as switching from district voting to at large voting for some offices. Minorities say at large voting can dilute their strength at the ballot box.

Physical Upgrades Addressed

Making the situation more complex is a host of new problems revealed by the 2000 presidential election that weren’t necessarily caused by discrimination, including mechanical breakdowns of aging voting equipment, questionable registration rolls and poorly trained poll workers. Con­gress responded in 2002 with the Help America Vote Act, largely designed to reform the physical process of voting through massive upgrades in equipment, registration and voter identification systems.

The question now is whether Congress should roll those two statutes into one sweeping enactment, and perhaps even pre empt state election laws, or let them stand separately. Panelists disagreed on the answer at the program, co sponsored by the ABA’s Young Lawyers Division and the University of Alabama School of Law.

Voting, said Alabama law professor Bryan Fair, “is a national right. Leaving it to individual states is appalling. I am interested in seeing the Voting Rights Act as the com­prehensive federal law on voting.”

That may work for some issues, such as same day registration or extending the franchise to felons, said John C. Brittain, chief counsel for the Lawyers’ Committee for Civil Rights Under Law. But he worried that tossing in provisions that don’t directly deal with racial discrimination could leave the reauthorized act vulnerable to a constitutional challenge.

“There’s damn well going to be an attack on the Voting Rights Act by conservative right wing groups, as there have been on other affirmative action measures,” Brittain said. The Voting Rights Act standing by itself already faces another potential obstacle because it effectively locks regions onto the preclearance list with no easy way to change it. Congress in 1965 intended the provision to be temporary, but nevertheless kept extending it. Nine of the 16 states on the original list are in the Southeast, but now many voting cases filed by the government occur outside the listed jurisdictions in such venues as Boston and West­chester County, N.Y.

Proponents of reauthorization worry just how long the Supreme Court will tolerate the static roster, especially when Justice Department statistics indicate, for example, that black voter registration in Mississippi climbed from 6.7 percent in 1965 to 80.5 percent in 1988.

While “the problem areas have changed dramatically,” said John K. Tanner, voting rights section chief for the department’s Civil Rights Division, business still is brisk. “We have filed as many suits in the last four years as have been filed in the history of the Voting Rights Act.”

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