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.”