SUPREME COURT NOTEBOOK

Key part of Voting Rights Act voided By Mark Sherman Associated Press WASHINGTON (AP) -- The Supreme Court ruled Tuesday that a key provision of the landmark Voting Rights Act cannot be enforced unless Congress comes up with an up-to-date formula for deciding which states and localities still need federal monitoring. The justices said in 5-4 vote that the law Congress most recently renewed in 2006 relies on 40-year-old data that does not reflect racial progress and changes in U.S. society. The court did not strike down the advance approval requirement of the law that has been used, mainly in the South, to open up polling places to minority voters in the nearly half century since it was first enacted in 1965. But the justices did say lawmakers must update the formula for determining which parts of the country must seek Washington's approval, in advance, for election changes. Chief Justice John Roberts said for the conservative majority that Congress "may draft another formula based on current conditions." That task eluded Congress in 2006 when lawmakers overwhelmingly renewed the advance approval requirement with no changes in which states and local jurisdictions were covered, and Congress did nothing in response to a high court ruling in a similar challenge in 2009 in which the justices raised many of the same concerns. "The coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs," Roberts said. The decision means that a host of state and local laws that have not received Justice Department approval or have not yet been submitted will be able to take effect. Prominent among those are voter identification laws in Alabama and Mississippi. Going forward, the outcome alters the calculus of passing election-related legislation in the affected states and local jurisdictions. The threat of an objection from Washington has hung over election-related proposals for nearly a half century. At least until Congress acts, that deterrent now is gone. That prospect has worried civil rights groups which especially worry that changes on the local level might not get the same scrutiny as the actions of state legislatures. Justice Ruth Bader Ginsburg, joined by her three liberal colleagues, dissented from Tuesday's ruling. Ginsburg said no one doubts that voting discrimination still exists. "But the court today terminates the remedy that proved to be best suited to block that discrimination," she said in a dissent that she read aloud in the packed courtroom. Ginsburg said the law continues to be necessary to protect against what she called subtler, "second-generation" barriers to voting. She identified one such effort as the switch to at-large voting from a district-by-district approach in a city with a sizable black minority. The at-large system allows the majority to "control the election of each city council member, effectively eliminating the potency of the minority's votes," she said. Justice Clarence Thomas was part of the majority, but wrote separately to say again that he would have struck down the advance approval requirement itself. Civil rights lawyers condemned the ruling. "The Supreme Court has effectively gutted one of the nation's most important and effective civil rights laws. Minority voters in places with a record of discrimination are now at greater risk of being disenfranchised than they have been in decades. Today's decision is a blow to democracy. Jurisdictions will be able to enact policies which prevent minorities from voting, and the only recourse these citizens will have will be expensive and time-consuming litigation," said Jon Greenbaum, chief counsel for the Lawyers' Committee for Civil Rights Under Law. The group represented a black resident of the Alabama County that challenged the law. Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, said, "This is like letting you keep your car, but taking away the keys." The decision comes five months after President Barack Obama, the country's first black chief executive, started his second term in the White House, re-elected by a diverse coalition of voters. The high court is in the midst of a broad re-examination of the ongoing necessity of laws and programs aimed at giving racial minorities access to major areas of American life from which they once were systematically excluded. The justices issued a modest ruling Monday that preserved affirmative action in higher education and will take on cases dealing with anti-discrimination sections of a federal housing law and another affirmative action case from Michigan next term. The court warned of problems with the voting rights law in a similar case heard in 2009. The justices averted a major constitutional ruling at that time, but Congress did nothing to address the issues the court raised. The law's opponents, sensing its vulnerability, filed several new lawsuits. The latest decision came in a challenge to the advance approval, or preclearance, requirement, which was brought by Shelby County, Ala., a Birmingham suburb. The lawsuit acknowledged that the measure's strong medicine was appropriate and necessary to counteract decades of state-sponsored discrimination in voting, despite the Fifteenth Amendment's guarantee of the vote for black Americans. But it asked whether there was any end in sight for a provision that intrudes on states' rights to conduct elections, an issue the court's conservative justices also explored at the argument in February. It was considered an emergency response when first enacted in 1965. The county noted that the 25-year extension approved in 2006 would keep some places under Washington's oversight until 2031 and seemed not to account for changes that include the elimination of racial disparity in voter registration and turnout or the existence of allegations of race-based discrimination in voting in areas of the country that are not subject to the provision. The Obama administration and civil rights groups said there is a continuing need for it and pointed to the Justice Department's efforts to block voter ID laws in South Carolina and Texas last year, as well as a redistricting plan in Texas that a federal court found discriminated against the state's large and growing Hispanic population. Advance approval was put into the law to give federal officials a potent tool to defeat persistent efforts to keep blacks from voting. The provision was a huge success because it shifted the legal burden and required governments that were covered to demonstrate that their proposed changes would not discriminate. Congress periodically has renewed it over the years. The most recent extension was overwhelmingly approved by a Republican-led Congress and signed by President George W. Bush. The requirement currently applies to the states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. It also covers certain counties in California, Florida, New York, North Carolina and South Dakota, and some local jurisdictions in Michigan. Coverage has been triggered by past discrimination not only against blacks, but also against American Indians, Asian-Americans, Alaska Natives and Hispanics. Towns in New Hampshire that had been covered by the law were freed from the advance approval requirement in March. Supporters of the provision pointed to the ability to bail out of the prior approval provision to argue that the law was flexible enough to accommodate change and that the court should leave the Voting Rights Act intact. On Monday, the Justice Department announced an agreement that would allow Hanover County, Va., to bail out. Child isn't required to go to Indian father By Jesse J. Holland Associated Press WASHINGTON (AP) -- A divided Supreme Court said Tuesday that federal law doesn't require that a Native American child be taken away from her adoptive parents and given to her biological father. The justices' 5-4 decision came in a case about a federal law intended to keep Indian children from being taken from their homes and typically placed with non-Indian adoptive or foster parents. South Carolina courts said the 1978 Indian Child Welfare Act favored the biological father of the girl, named Veronica. But the South Carolina couple who raised her for the first 27 months of her life appealed that decision. Justice Samuel Alito, writing for the court's majority, said the federal law didn't apply in this case because the biological father never had custody of the child and abandoned her before birth. Alito also said the law doesn't stop non-Native Americans from adopting the child when no other eligible candidates stepped forward. The law "doesn't apply in cases where the Indian parent never had custody of the Indian child," said Alito, who was joined in his opinion by Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer. "The Act would put certain vulnerable children at a great disadvantage solely because an ancestor -- even a remote one -- was an Indian," Alito said. "A biological Indian father could abandon his child in utero and refuse any support for the birth mother -- perhaps contributing to the mother's decision to put the child up for adoption -- and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interest. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA." The court's decision sends the case back to the South Carolina courts. But Justice Sonia Sotomayor dissented and pointed out that the court's ruling doesn't mean Veronica will now go back to her adoptive parents. The law gives tribes and relatives a say in decisions affecting a child, she said. "The majority does not and cannot foreclose the possibility that on remand, Baby Girl's paternal grandparents or other members of the Cherokee Nation may formally petition for adoption of Baby Girl," she said. "If these parties do so, and if on remand, Birth Father's parental rights are terminated so that an adoption becomes possible, they will then be entitled to consideration under the order of preference established in" federal law. Her dissent was joined by Justices Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan. Sotomayor said the court's decision turns the law "upside down, reading it from bottom to top in order to reach a conclusion that is manifestly contrary to Congress' express purpose in enacting ICWA: preserving the familial bonds between Indian parents and their children and, more broadly, Indian tribes' relationships with the future citizens who are 'vital to (their) continued existence and integrity.'" Added Scalia in a separate dissent: "This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection." The Obama administration, 18 states, several Indian tribes, current and former members of Congress and children's welfare groups filed briefs in support of the father. The National Council for Adoption and the American Association of Adoption Attorneys were among the groups that filed briefs in support of the South Carolina couple. Dusten Brown, a member of the Cherokee Nation, invoked the federal law to stop the adoption arranged by the girl's non-Indian mother when she was pregnant and the Charleston, S.C.-area couple, Matt and Melanie Capobianco. The couple was present at Veronica's birth in Oklahoma. Brown had never met his daughter and, after the mother rebuffed his marriage proposal, played no role during the pregnancy and paid no child support after Veronica was born. But when Brown found out Veronica was going to be adopted, he objected and said the law favored the girl living with him and growing up learning tribal traditions. South Carolina courts agreed and Brown took Veronica, now 3, back to Oklahoma at the end of 2011, even though she had lived with the Capobiancos for the first 27 months of her life. Sotomayor said "the anguish this case has caused will only be compounded" by the court's ruling if another change is made in the girl's living arrangements. "Baby Girl has now resided with her father for 18 months," she said. "However difficult it must have been for her to leave Adoptive Couple's home when she was just over 2 years old, it will be equally devastating now, if at the age of three and a half, she is again removed from her home and sent to live halfway across the country." The case is Adoptive Couple v. Baby Girl, 12-399. Lawsuit testing blogger's rights can go on By Mary Clare Jalonick Associated Press WASHINGTON (AP) -- A federal appeals court says former Agriculture Department employee Shirley Sherrod can continue her defamation case against a conservative blogger. Larry O'Connor, a colleague of the late blogger Andrew Breitbart, asked a federal court of appeals to throw out the case, saying it violates his freedom of speech rights. The appeals court on Tuesday upheld a federal district court's rejection of that motion to dismiss. The case is one of the first high-profile federal lawsuits to test bloggers' freedom of speech rights, and large news organizations including the New York Times Co., Washington Post Co. and Dow Jones & Company, Inc., have filed friend-of-the-court briefs in the suit. Sherrod was ousted from her job as a rural development official in 2010 after Breitbart posted an edited video of Sherrod, who is black, supposedly making racist remarks. She sued Breitbart, O'Connor and an unnamed defendant for defamation and emotional distress after USDA officials asked her to resign and the video ignited a racial firestorm. Breitbart died unexpectedly last year. Sherrod's lawyers say the unnamed defendant is the person whom they believe passed the video on to Breitbart, though the person's identity remains unknown. The video on Breitbart's website turned out to be edited, and when Sherrod's full speech to an NAACP group earlier that year came to light, it became clear that her remarks about an initial reluctance to help a white farmer decades ago were not racist but an attempt at telling a story of racial reconciliation. Once that was obvious, Sherrod received public apologies from the administration -- even from President Barack Obama himself -- and an offer to return to the Agriculture Department, which she declined. Sherrod's 2011 lawsuit says the incident affected her sleep and caused her back pain. It contends that she was damaged by having her "integrity, impartiality and motivations questioned, making it difficult (if not impossible) for her to continue her life's work assisting poor farmers in rural areas" even though she was invited to return to the department. O'Connor's lawyers had argued to have the case dismissed under a District of Columbia statute called an anti-SLAPP law that aims to prevent the silencing of critics through lawsuits. A federal district court judge rejected their motion to dismiss, citing timing and jurisdictional issues, prompting the appeal. In March arguments, the lawyers told the court of appeals that O'Connor and Breitbart, before he died, stood by the content, saying the blog post was opinion. "What happened here is what happens in journalism every day," said Bruce Brown, a lawyer for O'Connor. Sherrod's lawyers disagreed and said dismissal under the District of Columbia statute would violate their right to a trial. The case has been closely watched as a test of the District of Columbia's anti-SLAPP statute. Compensation may be due for permit denial WASHINGTON (AP) -- The Supreme Court says governments that withhold development permits may owe compensation to property owners. The 5-4 decision came Tuesday in a case involving a 15-acre plot owned by Coy Koontz in the Orlando area. He wanted permits from the local water management district to develop land classified as environmentally sensitive. Negotiations over the permits failed when the owner would not agree to conditions that included reducing the size of his project and paying for work on nearby government-owned land. Koontz sued, asserting that the agency's conditions were so strict that they amounted to a taking of his property, which the Constitution prohibits without "just compensation." The Florida Supreme Court ruled for the agency, but the justices overturned that decision and sent the case back. Published: Wed, Jun 26, 2013