States line up to challenge stringent Section 5 voting rights provision

— 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.

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.”