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High Court Sidesteps Decision on Voting Rights

The Supreme Court on Monday declined to decide whether a key provision of the 1965 Voting Rights Act is constitutional, sidestepping by an 8-1 vote the dilemma at the heart of a closely watched case.

The disputed provision gives the U.S. Justice Department power to review proposed election-law changes in several states, mostly in the South, and many other counties and municipalities, where race discrimination had been most flagrant. The case was shaping up to be a defining test of an ideologically split court that has been increasingly suspicious of government policies attempting to remedy racial bias.

Yet, the justices opted to avoid the constitutional question and, rather, narrowly decided that it should be easier for certain political jurisdictions to be exempt from the so-called pre-clearance requirements.

The decision generally would allow all counties and other political subdivisions that can show they have not used a forbidden voting test or other discriminatory measure for 10 years to be free of Justice Department oversight.

Only Justice Clarence Thomas, the current court's only African American, said the justices should have decided the looming constitutional issue. He would have struck down the law.

The Voting Rights Act, a landmark of Congress' civil rights agenda in the 1960s, has been repeatedly renewed by Congress and upheld by the Supreme Court over the years.

A small Texas utility district challenged the provision after the 2006 renewal. The utility district said the law unconstitutionally infringed on state powers and, in a practical vein, was no longer necessary because of changes in voter registration and turnout by racial minorities.

The challengers and other critics of the Voting Rights Act said the election of the nation's first black president, Barack Obama, showed that the law was no longer needed. The law's defenders, including the Justice Department in both the Bush and Obama administrations, said minorities still face intimidation and discrimination at the polls.

When the justices heard oral arguments in April, several conservative justices, including Chief Justice John Roberts, suggested they agreed with the challengers that the historic law that had aided once-disenfranchised blacks was no longer needed.

When Roberts announced the court's ruling Monday, he struck some of that theme and intimated that a majority might someday be ready to strike down the law.

"Things have changed in the South," Roberts said.

Yet for now, the law survives through an apparent compromise among the justices across the ideological spectrum.

Affected by the narrow ruling is the requirement that covered jurisdictions not change their electoral laws without approval by the Department of Justice. That was intended to ensure that a local government did not draw new voting-district boundaries or enact rules that would dilute the votes of blacks or other minorities.

A separate, underutilized provision of the law allows districts to opt out from Justice Department review, for example, if the districts can show that they have not used any forbidden voting tests for a decade and can show they have "engaged in constructive efforts to eliminate intimidation and harassment" of voters.

The Justice Department had long interpreted the law to strictly limit which jurisdictions could apply to opt out. Roberts said that since 1982, only 17 jurisdictions - out of more than 12,000 covered political jurisdictions - have successfully been exempt from the act. He said it was unlikely that Congress intended the so-called "bail out" provision to have such limited effect.

Monday's opinion gives all covered jurisdictions a chance to make the case to lift Justice Department oversight.

Roberts was joined in full by Justices John Paul Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, Stephen Breyer and Samuel Alito. Justice Thomas concurred in the judgment but dissented from the part of the opinion declining to decide the constitutionality of the law.

Saying he would find the act unconstitutional, Thomas, wrote, "The extensive pattern of discrimination that led the court to previously uphold Section 5 as enforcing the Fifteenth Amendment (right to vote) no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence."

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