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A federal judge in Washington ruled on Sept. 21 that Congress acted within its authority in 2006 when it extended the Voting Rights Act, including a section that requires some states and localities to get permission before changing how they run their elections. The opinion by U.S. District Judge John Bates was a victory for civil rights advocates and for members of Congress who supported the act’s renewal. Bates described the nearly 20 hearings and 15,000-page record that lawmakers compiled leading up to the renewal — a record that Bates wrote demonstrated the continued existence of racial discrimination. Section 5 of the Voting Rights Act, requiring preclearance of election changes by the Justice Department or a three-judge panel, has been under intense scrutiny. In 2009, the U.S. Supreme Court sidestepped the question of the section’s constitutionality, but warned that it raised “serious constitutional questions.” The latest challenge to Section 5 came from Shelby County, Ala. Represented by Washington’s Wiley Rein, the county filed suit last year calling the preclearance requirement burdensome and asking to have the section declared an unconstitutional. The Constitution’s Fifteenth Amendment empowers Congress to protect the right to vote by “appropriate legislation.” Bates ruled that Congress more than justified its exercise of the Fifteenth Amendment, and he mentioned several of the examples Congress gathered of alleged discrimination. “The record describes one instance in which Mississippi state legislators opposed a redistricting plan that would have given African-Americans an increased opportunity to elect representatives of their choice, referring to the plan ‘on the House floor as the “black plan” and privately as “the n- plan,” ‘ ” Bates wrote. Listing other instances, he added, “All these examples of intentional voting discrimination took place not in the 1950s or 1960s, but in the 1980s, 1990s, and 2000s.” The opinion runs for 151 pages, and an accompanying order granted summary judgment to the U.S. Department of Justice, which defended Section 5. Xochitl Hinojosa, a Justice Department spokeswoman, released a statement saying the department was pleased with the ruling. The 2006 reauthorization received “overwhelming bipartisan support” in Congress, the statement reads. “This landmark law ensures that every American has the opportunity to vote and have that vote counted.” Bert Rein, the Wiley Rein founding partner who represented Shelby County, did not respond to requests for comment. Joining him on the case were partner William Consovoy, of counsel Thomas McCarthy and associate Brendan Morrissey. Any appeal would go first to the U.S. Court of Appeals for the D.C. Circuit. The plaintiffs’ complaint was different from several other disputes about Section 5 because it was a direct, facial challenge to the provision. Some other jurisdictions that are subject to the section have sought “bailouts” that would allow them to avoid the preclearance requirement in the future, but Shelby County determined it would be futile to apply for a bailout, according to Bates’ opinion. Preclearance may come from the Justice Department’s Civil Rights Division or from the U.S. District Court for the District of Columbia. On Capitol Hill, lawmakers have been closely watching litigation related to the Voting Rights act, and Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, praised the ruling. “Judge Bates’ careful and thorough opinion reflects an appropriate deference to the extensive testimony received over the course of nearly 20 hearings before the Senate and House Judiciary Committees,” Leahy said in a written statement. The case received significant interest from civil rights organizations, some of which intervened on behalf of Alabama residents in defense of Section 5. Dewey & LeBoeuf partner John Nonna, a board member of the Lawyers’ Committee for Civil Rights Under Law, represented along with the Lawyers’ Committee a former member of a city council in Shelby County. Nonna said in a written statement that the ruling “preserves the effectiveness of the Voting Rights Act, which has been and will continue to be our country’s most important means for preserving the right to vote and preventing discrimination in the electoral process.” David Ingram can be contacted at [email protected].

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