Some experts say the U.S. Supreme Court's announcement Friday that it will hear a case challenging the constitutionality of the Voting Rights Act's Section 5 means this pivotal part of the 47-year-old law is dead and the court is finally ready to bury it.
Some members of the court have complained about Section 5 in more than one case since Congress last renewed the VRA in 2006. Section 5 requires some states -- the key is some, not all -- to get permission, or "pre-clearance," from the Justice Department or a federal court before changing their election laws.The affected states, including Texas, are those determined under the act to have a history of discriminating against minority voters.Most are in the South."Coming after the reelection of an African-American president and rising minority turnout, I have little doubt these justices will say, as [Chief Justice John] Roberts said in a campaign finance case, 'Enough is enough.'" law professor Rick Hasen wrote on the Election Law Blog. (bit.ly/T24lzF)Hasen said previous election law cases show that Roberts won't shy away from his conservative leanings this time, as some say he did in his now-famous opinion upholding most of the "Obamacare" Affordable Care Act this year."I don't expect statesmanship or blinking from Court conservatives this time," Hasen wrote.But wait. Very recent federal court rulings found discrimination against minority voters in Texas cases on political redistricting and voter ID. Both of those rulings came under Section 5, and neither action was allowed to go forward as the Legislature had approved it.So if Section 5 goes away, what protects minority voters in Texas against similar legislative misdeeds?Critics say it will be Section 2, which allows people who say they've been discriminated against to file lawsuits.Congress rightly saw when it approved the Voting Rights Act in 1965 and renewed it in 1970, 1975, 1982 and 2006 that more than Section 2 would be needed to stamp out vestiges of discrimination in elections.It was easy to see that literacy tests, poll taxes and other voting requirements in some states were discriminatory.But Congress also saw that some legislators were able to stay a step ahead of the law in coming up with new ways to restrict minority voting. Section 5 required targeted states to prove that proposed election law changes were not discriminatory.But when it was written, Section 5 was expected to go away in five years The targeted states, including Texas, complain that it has long outlived its need as minority voting strength has grown.Particularly in a 2009 case involving a municipal utility district in Austin, some Supreme Court justices have voiced agreement. But the question has never been posed as directly and forcefully as in the case accepted by the court Friday from Shelby County in suburban Birmingham, Ala.The weakest point in Section 5 is that in its most recent renewals Congress has not updated the formula under which certain states are made subject to the pre-clearance requirement. That formula is still based on minority voter registration and election turnout in 1972."Things have changed in the South," the Supreme Court said in 2009. "Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels."That's undoubtedly true in Texas. Yet lower courts still said Texas discriminated in redistricting and the voter ID law.Section 5 or something like it is still needed to block discriminatory acts before they disenfranchise voters.Have more to add? News tip? Tell us
