(The Root) — It is possible that this Black History Month could close with a case whose decision could mean a major setback to civil rights, occurring in the age of the first black president and aided by the second black Supreme Court justice. On Wednesday the high court is scheduled to hear one of the most important civil rights cases in decades. In Shelby County v. Holder, the court will consider Section 5 of the Voting Rights Act of 1965. The full text of the section and the act can be read here, but the focus will be on Section 5, aimed at removing the obstacles to voting created by Southern states in order to deter African-American voter participation.
Among the most notorious methods of deterrence, historically, were poll taxes, which required payment of a special tax to vote, and academic tests, referred to colloquially as "literacy tests," although many were often far more complicated than tests merely assessing literacy proficiency. Section 5 dismantled such measures by requiring that 16 Southern states (among them Alabama, in which Shelby County is located) with a history of legalized discrimination have their voting processes and procedures and any future changes cleared by the Justice Department.
Though the Voting Rights Act was upheld with bipartisan support in 2006, and ultimately reauthorized for another 25 years by Republican President George W. Bush, it is now facing its most serious challenge since its passage, fueled by conservatives.
At the moment there are three perceived progressive justices on the Supreme Court: Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Justice Anthony Kennedy, who was appointed by President Ronald Reagan, is viewed as the court's "swing vote," giving conservatives a slim majority of the Supreme Court. Conservatives include Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.
This means that an African American could end up playing a key role in dismantling one of America's most significant civil rights advancements — advancements made possible by his predecessor, no less. Thurgood Marshall, the first black justice on the Supreme Court, litigated some of America's most important Supreme Court cases, among them Brown v. Board of Education, which helped end legalized segregation in American public schools.
In an interview with The Root, Judith Browne Dianis, co-director of the civil and legal rights organization the Advancement Project, said Section 5 "acts as a preventative measure with regard to discrimination and voting. It allows us to stop discrimination in its tracks before it happens. Without it, what will happen is we will have to sue states and counties after discrimination occurs, which means your right to vote has already been impacted."
While poll taxes and literacy tests no longer exist, Dianis explained that during this past election cycle, Section 5 played a key role in preventing the disenfranchisement of voters of color. She specifically cited voter-identification laws in the states of Texas and South Carolina, which were halted because they did not pass the challenges that resulted from the review set forth in Section 5.
But Dianis cited other ways in which Section 5 has a profound effect on how political power is distributed in America. Redistricting is the process by which electoral and congressional districts are redrawn each decade based on the U.S. census. The process has emerged as a key method for altering or limiting the political power of specific groups. For instance, one of Congress' most high-profile progressives, Rep. Dennis Kucinich, was ousted after redistricting forced him and another Democratic member of Congress to face each other in a primary over a new, consolidated district in Ohio. Similarly, Dianis explained that the process has been used to attempt to limit the voting power of minority groups.
She referred to "packing" and "cracking," the informal terms used to describe two strategies employed by those who do not benefit politically from increased minority political participation. "Packing" is when district lines are drawn so that an overwhelming majority of minorities in a state or locale are pushed into one voting district, meaning that they may have their own member of Congress, who is likely to be a minority. However, they will have very little political voice beyond that district anywhere else in the state.
"Cracking" is when the extreme reverse happens, and minority voters are split into tiny factions that are spread throughout multiple districts, thus diluting their voting power. Section 5 has been crucial in preventing "packing" and "cracking" attempts in states like Texas.
Despite the conservative advantage on the court, Dianis said she remains confident that Section 5 will remain in place. "I anticipate that the Supreme Court will uphold it. While there have been a number of justices — Alito and Justice Thomas — who have continually questioned the constitutionality of Section 5, at the end of the day this is about fairness, and Justice Kennedy is the important vote in all of this. His record is that he believes in fairness."
Keli Goff is The Root’s special correspondent. Follow her on Twitter.