Conservative activists and Republican attorneys general have launched a series of lawsuits meant to challenge the most muscular provision of the Voting Rights Act 0f 1965 before a Supreme Court that has signaled it is suspicious of its constitutionality.
Working their way to the high court are lawsuits from Arizona to North Carolina, challenging Section 5 of the historic civil rights act. The provision requires states and localities with a history of discrimination to get federal approval of any changes in their voting laws.
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.