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States Reined In by 1965 Voting Act Await a Decision

BEAUMONT, Tex. — There is little agreement on anything, even when it all started, but sometime in the last decade the Beaumont Independent School District became a battle zone.

Tempers have flared at school board meetings and lawsuits have been filed, as a mostly white group of critics have charged the black-majority school board with enabling corruption, wasteful spending and academic cheating. The school board’s majority denies the charges and says the whites simply cannot tolerate black control.

Determined to change the board but aware that the incumbents could not be beaten in the current districts, the critics pursued alternatives. Last December, they pushed for a new election method that was approved, along narrow racial lines, in a citywide referendum. The Justice Department, citing Section 5 of the Voting Rights Act, objected to the new method and it was dropped. 

Then, in April, the critics took advantage of a little-noticed state statute that rendered three of the board’s black incumbents unexpectedly disqualified from the next election, a procedural maneuver affirmed by a Texas appeals court. This, too, was blocked by the Justice Department.

But throughout the spring, Michael D. Getz, a city councilman and a leader of the crusade to remake the board, kept a close eye on the United States Supreme Court. “I thought, ‘Well, this might not be the last word on this,’ ” he said.

The last word, for now, will come this week, when the Supreme Court rules on the constitutionality of Section 5. Passed in 1965 at the height of the civil rights movement and renewed and amended several times since, the section requires states, counties, cities, school boards, water districts and other jurisdictions where there has been a history of racial discrimination to submit any proposed voting changes to the Justice Department for approval, or “preclearance.”

Shelby County, Ala., is arguing that these covered jurisdictions — nine mostly Southern states and parts of several others — are no longer any different from the rest of the country, and that the chore of compliance has become an unfair and costly burden.

“The preclearance mechanism is making it substantially more difficult for Alabama’s current leaders to achieve important, much-needed reforms,” the Alabama attorney general wrote in a friend-of-the-court brief. He went on to describe the prolonged and complicated procedures involved in getting federal approval for a “facially nondiscriminatory” plan to modernize the state’s election code.

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Michael D. Getz, a city councilman and a leader of the crusade to remake the board.Credit...Michael Stravato for The New York Times

Proponents of Section 5 say the degree of progress in these areas is exaggerated, and many civil rights advocates are fearful of a broad rollback of minority voting power.

Last week, the Brennan Center for Justice at the New York University School of Law, which supports keeping Section 5, reported on the kinds of changes that might be put into practice if the section were to be struck down.

The report lists electoral changes that were recently blocked, like Texas’ statewide redistricting plan and its voter identification law, and others that were withdrawn out of fear of an objection. Still others, including a voter identification law in Alabama, have been passed into law but not yet submitted for review. The ID law was passed in 2011, raising suspicions among civil rights groups that the state is simply waiting out the Supreme Court.

If Section 5 were to fall, hotly debated laws like those would still face legal challenges, said Richard H. Pildes, a law professor at New York University. Challenging a law would be more difficult and expensive without Section 5, Professor Pildes acknowledged, but he pointed out that voting restrictions were recently blocked in Ohio and Pennsylvania, states that are not covered by the section.

“I believe state election laws will continue to be robustly scrutinized and challenged,” he wrote in an e-mail. However, he added, “The biggest question will be changes to election laws at the level of local governments.”

It is at the level of counties, towns and school boards, where news media attention is often scant and legal resources fewer, that Section 5 is most active. From 1982 to 2006, according to a recent article in The Yale Law Journal, more than 85 percent of voting change objections came from jurisdictions below the state level.

Section 5 submissions from low-level jurisdictions have become routine, local officials and lawyers say, and for the most part federal approval has become routine as well. Since 2000, more than 200,000 voting changes have been submitted to the Justice Department and fewer than 80 objections have been lodged.

But it is a matter of debate as to whether that indicates a lasting change in political behavior or simply the effectiveness of Section 5’s constraints.

There does not need to be intentional discrimination for some voting change to end up weakening hard-won minority voting power, said Prof. Pamela S. Karlan of Stanford Law School.

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Michael Neil is one of the three white members of the seven-member board.Credit...Michael Stravato for The New York Times

“On things like polling place changes, a lot of times they just don’t think about it and the concern about minority enfranchisement isn’t even on the radar,” she said. Section 5 forces city councils and school districts to consider such outcomes, since those affected may not have the resources to bring attention to such disenfranchisement.

Local officials say that they are committed to fair representation but that Section 5 forces them to create unreasonable election plans.

“We can put forth a plan that has a lot of common sense to it, if we don’t have to have Justice Department clearance,” said Ken Clark, a commissioner for Galveston County, Tex., who helped draw up several redistricting maps that were blocked when the Justice Department said they were adopted with a “discriminatory purpose.”

Mr. Clark said the county would probably not revive those blocked maps if Section 5 were struck down. In that case, “it just opens up our options,” he said, adding that even those earlier plans were created with federal approval in mind.

The same arguments being made in Washington are being made in Beaumont. Now a black-majority city, Beaumont has a history of federal intervention, having been forced in the 1980s to consolidate its two school districts: one mostly white and affluent and the other mostly black and economically struggling.

The critics of the current board, pointing as proof of their concerns to an investigation into the district by the Texas Education Agency, say that racial tensions are being sustained by Section 5, a relic of bygone times.

“There is a part of this community that never forgets, no matter how much progress is made,” said Michael Neil, one of three white members of the seven-member board. “What we hear about is how things used to be.”

Supporters of the current board say the schools have genuinely been improving, and Janice Brassard, a white school board member who tends to vote with the black majority, said that the anger of some of the critics goes back long before the recent allegations of mismanagement. “I really feel they think that blacks and whites don’t need to be playing in the same sandbox,” Ms. Brassard said.

In any case, the school board and its critics will soon find out the rules under which they can continue the fight. Mr. Neil and Mr. Getz expect a favorable court decision, and a renewed chance to remake the school board.

Asked what she would do if the court struck down Section 5, a black school board member, Zenobia Bush, simply said, “Pray.”

A correction was made on 
June 25, 2013

An article on Monday about Section 5 of the Voting Rights Act and its effect on protecting minority voting rights in the South and elsewhere misstated an aspect of a recent Yale Law Journal article on the source of many complaints about voting violations, the vast majority of which come from counties, towns and school boards. The journal article said that between 1982 and 2006, more than 85 percent of the voting change objections — not submissions — came from below the state level.

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A version of this article appears in print on  , Section A, Page 1 of the New York edition with the headline: States Reined In By ’65 Voting ACT Await a Decision. Order Reprints | Today’s Paper | Subscribe

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