The combination of skeptical justices and an increasingly partisan political environment has led some experts to predict that the end is near for that requirement, which civil rights groups have called the most effective weapon for eliminating voting discrimination.
The Supreme Court’s recent actions “have indicated that Section 5 is living on borrowed time,” Columbia University law professor Nathaniel Persily told the U.S. Commission on Civil Rights last week. “Assuming the personnel on the court remains constant, the question is not whether the court will declare Section 5 unconstitutional, but when and how.”
The lawsuits are defending redistricting and a variety of new laws and electoral changes — including controversial requirements that voters show IDs at the polls — that Democrats and minorities charge will dilute minority rights.
The Supreme Court, in a 2009 ruling and again last month, expressed concern about “serious constitutional questions raised by Section 5’s intrusion on state sovereignty.”
The justices sidestepped that question in the most recent action challenging the law’s 2006 reauthorization. But the new lawsuits offer the court a variety of ways to consider the overriding issue — whether special protections enacted during the darkest days of the civil rights struggle are still required in a country that has elected its first black president.
“It’s really a full-court press to get this before the Supreme Court as soon as possible,” said Richard L. Hasen, an election-law specialist at the University of California at Irvine School of Law.
Rewriting voting laws
The upcoming elections underscore the urgency. At issue are voting law changes in areas covered by Section 5 — nine states, mostly in the South, and parts of seven others. Those southern state legislatures and governor’s offices are dominated by Republicans, and are rewriting voting laws and drawing once-a-decade maps for legislative and congressional districts.
Section 2 of the VRA applies nationwide, and it forbids any practice that denies or restricts voting rights “on account of race or color.” Section 5 poses additional restrictions on states with histories of discrimination, requiring any electoral change be approved by either the attorney general or federal judges in Washington to ensure the change neither “has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.”
Attorney General Eric Holder in three speeches since December has warned that his department will be vigilant.
“The reality is that — in jurisdictions across the country — both overt and subtle forms of discrimination remain all too common and have not yet been relegated to the pages of history,” Holder told one audience.
The covered states are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Certain jurisdictions in California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota also meet the formula for coverage.
A complicating factor in analyzing changes enacted by the states is that minorities largely identify with the Democratic Party.
That means every action of Holder’s Department of Justice is seen through a partisan lens, Persily said. When the department said in December that South Carolina had failed to prove that its new voter-ID law would not unfairly impact minority voters, former GOP presidential candidate Rick Perry said the Obama administration had “declared war” on the state.
The fate of the Voting Rights Act is also affected by a changed mood in Washington: When the law was reauthorized by Congress in 2006, it was with an overwhelming majority in the House, a unanimous Senate and signed with great fanfare by President George W. Bush.
“But the bipartisan coalition that supported it has collapsed,” Hasen said
Against that political backdrop, the lawsuits are lined up:
— Arizona is suing because it says it long ago solved any discriminatory treatment of its Spanish-speaking voters and should not have been swept up in Section 5’s coverage formula just because it has a large percentage of Hispanic voters. It repeats a familiar criticism of Congress’s work in 2006: The formula used for deciding which states should be covered stems from 1972 conditions.
— Texas went directly to court to seek approval of the redistricting plan passed by its Republican-dominated legislature. The state had been awarded four new congressional seats because of its population growth, about two-thirds of which is in the Hispanic community. But Latino groups say the new maps do not reflect the political power that should come with the growth.
— South Carolina hired former Bush administration solicitor general Paul D. Clement to challenge the Justice Department’s rejection of its voter-ID bill, an indication the state believes the issue could end up at the Supreme Court.
But the cases most likely to reach the high court first are from two small communities — Shelby County, Ala., and Kinston, N.C. They each make direct challenges to Congress’s authority in 2006 to renew Section 5 for another 25 years. Both draw on the concerns of the court expressed in the 2009 case —
Northwest Austin Municipal Utility District Number 1 v. Holder
— about whether Congress did enough to ensure that the extraordinary demands of Section 5 are still justified.
“Things have changed in the South,” wrote Chief Justice John G. Roberts Jr., who was joined by the rest of the court in a narrow decision allowing the utility district to opt out of the act’s requirements. (Justice Clarence Thomas wanted to go further and find the act unconstitutional)
“Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels,” Roberts wrote. In short, he concluded, the act “imposes current burdens and must be justified by current needs.”
Shelby County and Kinston are not able to meet opt-out requirements, and that is why conservative activists have promoted them as test cases for challenging the law. (The DOJ last week said it was reconsidering its objections to Kinston’s changes, which might affect whether its case will go forward.)
In the Shelby case, U.S. District Judge John Bates wrote a detailed, 131-page opinion saying Congress adequately justified its action in 2006 by holding extensive hearings and compiling 15,000 pages of documents showing Section 5 was still needed. A three-judge appeals panel is now considering the case.
The disparate treatment of states — why Wisconsin, for example, may implement a picture-ID voter requirement, while South Carolina must get federal approval — is a theme that has run through the Supreme Court’s recent consideration of the issue.
Edward Blum, whose Project on Fair Representation encouraged Shelby County’s suit, said “there has been a real sea change” in the number of jurisdictions willing to challenge Section 5.
That can be partly attributed to the court’s signals and to Republican leaders in the Southern states more willing to challenge the law, said Washington lawyer Michael Carvin, who is representing the Kinston citizens.
Debo Adegbile, legal director of the NAACP Legal Defense and Educational Fund and one of the lawyers who argued the 2009 case, said constitutional challenges to the act have been a constant since it was first enacted in 1965.
“Each challenge has failed, however, because the courts do not lightly cast aside the congressional judgment that voting discrimination is corrosive and remains a very real threat,” he said.
But Persily said the goals of Section 5 are being made more difficult by the partisan implications of the Justice Department’s decisions.
“Each preclearance determination, especially concerning statewide redistricting, is seen as a zero sum game between the political parties with great political and policy consequences,” he said. Because of that, the department must view each decision “as a potential vehicle [for a court decision] that would destroy Section 5 itself.”