By Michael Stewart / Executive Editor
The U.S. Supreme Court could decide as early as today if it will consider the merits of a 47-year-old provision in the Voting Rights Act that requires Mississippi and eight other states to get federal permission before making any changes in the way they conduct elections.
The justices could choose not to address the issue.
Adopted in 1965, the provision requires the states of Mississippi, Alabama, Alaska, Arizona, Georgia, Louisiana, South Carolina, Texas and Virginia get advance approval, or preclearance, before adopting any new voting laws or procedures.
The impetus at the time the provision was passed was to ensure the states, mostly southern, did not discriminate against minorities at the election polls.
Many officials in the states impacted feel that racial discrimination is no longer a factor and that the provision needs to be lifted.
"Every state needs to be under this or all out from under it," Lauderdale County Circuit Clerk Donna Jill Johnson said. "I don't think it is fair for us to be singled out."
Before the states can change their voting rules, they must get approval either from the U.S. Justice Department's civil rights division or from the federal district court in Washington that the new rules won't discriminate.
But the law is burdensome, requiring a lengthy process for even minor election changes, Johnson said. Approval to move a polling location from one location to another in the same building can take months, she said.
Lauderdale County Election Commission Chairwoman Awana Simmons agreed.
"Our hands are tied with anything, even the smallest detail," Simmons said.
Both Johnson and Simmons said Mississippi is not the same place it was when the provision of the Voter Rights Act was approved in 1965 and that the state needs to look forward, not back.
"The South always gets a bad rap about stuff," Simmons said. "We are just trying to do the best job possible to help the voter. We want every vote that should count to count."
But Congress and lower courts that have looked at recent challenges to the law concluded that a history of discrimination and more recent efforts to harm minority voters justify continuing federal oversight.
Congress compiled a 15,000-page record and documented hundreds of instances of apparent voting discrimination in the states covered by the law dating to 1982, the last time it had been extended.
One incident cited in the congressional record reportedly occurred in Mississippi in 2001 in Kilmichael when an election was canceled after a large number of African-American candidates sought local office following 2000 census results that showed blacks had become the majority in the city.
Lauderdale County District 4 Election Commissioner Glorida Dancy, who represents a primarily minority district, feels there is still a need for federal election oversight in the states in question.
"A lot of people don't understand the law and don't understand things about voting," Dancy said. "Until everyone understands what their rights are, they need somebody out there watching out for them."
Supreme Court justices sidestepped the issue in a case from Texas in 2009. In an opinion joined by eight justices, Chief Justice John Roberts wrote then that the issue of advance approval "is a difficult constitutional question we do not answer today."
Since then, Congress has not addressed potential problems identified by the court. Meanwhile, the law's opponents sensed its vulnerability and filed several new lawsuits.
But in 2009, Roberts indicated the court was troubled about the ongoing need for a law in the face of dramatically improved conditions, including increased minority voter registration and turnout rates. Roberts attributed part of the change to the law itself. "Past success alone, however, is not adequate justification to retain the preclearance requirements," he said.
He also raised concern that the formula by which states are covered relies on data that is now 40 years old. By some measures, states covered by the law were outperforming some that were not.
Jurisdictions required to obtain preclearance were chosen based on whether they had a test restricting the opportunity to register or vote and whether they had a voter registration or turnout rate below 50 percent.
In the federal court of appeals in the District of Columbia, Circuit Judge Stephen Williams objected that the law specifies that these criteria are measured by what happened in elections several decades ago. But writing for a majority that upheld preclearance, Circuit Judge David Tatel said the question is not whether old data is being used, but whether it helps identify jurisdictions with the worst discrimination problems.
"If it does, then even though the formula rests on decades-old factors, the statute is rational," Tatel said.
Shelby County, Ala., a well-to-do, mostly white bedroom community near Birmingham, adopted Roberts' arguments in its effort to have the voting rights provision declared unconstitutional, but lost in the lower courts. The county's appeal is among those being weighed by the high court.
Yet just a few years earlier, a city of nearly 12,000 people in Shelby County defied the voting rights law and prompted the intervention of the Bush Justice Department.
Some say the law isn't practical.
In Mississippi, a Voter ID law passed by the Mississippi Legislature and approved in a November 2011 voter referendum is waiting Department of Justice approval and won't be in place for the 2012 election.
In September, the U.S. Department of Justice asked the Mississippi Attorney General's office for more information to determine if the new law, which requires a valid, government-issued photo ID for voters, discriminates against minority voters.
Mississippi state Rep. Greg Snowden, R-83rd District, said doing away with the provision would not change the Voting Rights Act, which bars voter discrimination; it would just get rid of the preclearance provision.
"You still can't discriminate," Snowden said.
Lauderdale County District 2 Election Commissioner Rod Amos feels the provision is a needed safeguard.
"They have served a purpose," Amos said of the provision. "I would be inclined to keep them in place."
Associated Press writers Jay Reeves and Mark Sherman contributed to this report.