Dr. Lonnie Randolph, Jr., President of the South Carolina NAACP speaks at a rally in support of the Voting Rights Act in the State House on February 26, 2013 in Columbia. (Richard Ellis/Getty Images)
By Mary Orndorff Troyan, Gannett Washington Bureau
WASHINGTON - Voting districts designed to increase the chances of electing minority candidates, a fixture in the South, could be dismantled if the Supreme Court invalidates a key provision of the Voting Rights Act.
The court heard oral arguments on Wednesday in a case that challenges Section 5 of the 1965 landmark law. The section bars all or part of 16 states from making any changes to their election procedures without first proving the changes wouldn't discriminate against minority voters. A ruling is expected in a few months.
If the court rules Section 5 is no longer necessary, states, counties and local governments subject to the provision would not have to submit new election maps to the Justice Department for review.
Civil rights advocates say that would open the door for jurisdictions like many in the South - where blacks tend to vote for black candidates and whites tend to vote for white candidates - to redraw districts in a way that makes it harder for minorities to get elected.
"There is no doubt in my mind that if there is no Section 5, the eight black (state) Senate districts in Alabama would disappear in the very near future," said state Sen. Hank Sanders, D-Selma, who holds one of those eight seats.
Because the Voting Rights Act requires that minorities have an opportunity to elect a candidate of their choice, states have created a few congressional districts with significant percentages of minority voters, and most have elected minority candidates.
"Section 5 has been an important protection for these opportunity districts," said Debo Adegbile, an attorney with the NAACP Legal Defense Fund.
If Section 5 disappeared, he said, "many of these districts would be attacked and the hands on the clock would start winding backwards and we would see lower minority representation."
Supreme Court Justice Antonin Scalia mentioned majority-black districts during Wednesday's arguments.
"There are certain districts in the House that are black districts by law just about now," Scalia said.
He said Congress may not be willing to repeal Section 5 for fear of political repercussions, so the Supreme Court may have to do it.
Eliminating Section 5 would give jurisdictions more flexibility to decide how many districts they should draw with a majority of minority residents, said Rick Hasen, a professor at the University of California Irvine School of Law and an expert on election law.
"Section 5 says no backsliding, that you can't make (minorities) worse off," Hasen said. "So jurisdictions... could get rid of those districts if Section 5 disappeared, but could not while Section 5 remains on the books."
Without Section 5, for example, a state could break up a single 75-percent minority district and make two districts with 30-percent minority populations. Or it could consolidate two 30-percent districts into one district dominated by minority residents. And the state wouldn't have to prove in advance that the changes wouldn't harm minorities.
Most state legislatures would push more minority voters into one district, said David Bositis, a senior fellow at the Joint Center for Political and Economic Studies, a think tank that focuses on issues affecting African-Americans.
"White voters in most of the Southern states, not all, ... are Republicans and so the whiter the district, the more likely it's going to be a Republican district,'' Bositis said. "They're going to want to pack black voters into as few districts as possible.''
Alabama, South Carolina, Louisiana and Mississippi have one majority-black congressional district each. Those districts are represented by the only black - and only Democrat - in each state's congressional delegation. Every other congressman from those four Deep South states is a white Republican.
Even if the Supreme Court rules Section 5 no longer necessary, state and local governments would still be required to protect minority voters. The Constitution and other parts of the Voting Rights Act prohibit discrimination nationally, and individuals could still sue to challenge new districts they believe disenfranchised minorities.
Conservatives, who would like to see Section 5's demise, say drawing districts to include large numbers of minority voters has led to political segregation, in which white office-holders don't represent many minorities, and black office-holders don't represent many whites.
"Telling people they should be voting only if they're voting among those of their own kind and encouraging racial segregation and racial gerrymandering is quite at odds with the original ideals of the Voting Rights Act and the civil rights movement," said Roger Clegg, president and general counsel at the Center for Equal Opportunity.
Clegg, speaking at a recent Heritage Foundation panel discussion, said Section 5 is to blame for less-competitive congressional districts and more ideological polarization in Washington.
"Section 5 encourages racial politics and balkanization," he said.
Michael Carvin, a partner at the Jones Day law firm in Washington who worked in the civil rights division of the Justice Department under former President Ronald Reagan, said President Barack Obama's election and re-election proves black candidates can win white votes.
"So it's quite reasonable to think that... 30-percent black districts can elect a black Democrat just as readily as a white Democrat," Carvin said.
Not so, said Sanders, the black state legislator in Selma. Obama won 95 percent of the black vote and about 15 percent of the white vote in Alabama in 2012.
"Whites won't vote for blacks in Alabama. That's the state of race relations," Sanders said.