Time to Change the Voting Rights Act?

Writing separately and only for himself, Justice Clarence Thomas went farther and did not mince his words: "I conclude that the lack of current evidence of intentional discrimination with respect to voting renders Section 5 unconstitutional."

Hasen, who has just released a book, "The Voting Wars," says that after 2009 "something significant changed."

In an piece for Scotusblog, Hasen writes, "In covered state after covered state, Republican state elected officials started arguing that the Act was unconstitutional and calling for the Court to strike it down as unconstitutional. "

Hasen says that part of the reason for the change in Republican attitudes was the fact that a Democrat was in the White House, controlling the Department of Justice which makes preclearance decisions.

"DOJ has blocked controversial voter identification laws in Texas and South Carolina. It has been fighting restrictive voting laws in Florida. It has threatened to use a different part of the Voting Rights Act in Pennsylvania (not a covered jurisdiction) to block that state's voter id law. A Republican can more safely speak out against the Voting Rights Act now, because the argument against the Act can be cast in partisan, not racial, terms," Hasen writes.

Terence Pell, President if the Center of Individual Rights, a group opposed to Section 5, says it was passed as emergency legislation in 1964, and should not be extended.

"It was supposed to last five years to address a clearly egregious problem in the mostly Southern states that it covered," he says. "Nobody thinks conditions in the South today are as they were in 1964. In 1964 many southern officials were systematically manipulating the rules to exclude black citizens from voting, nobody argues that is the case today."

But Attorney General Eric Holder has called Section 5 the "keystone" of the voting rights law. In a speech at the Lyndon Baines Johnson Library in Austin, Texas in December 2011 he referred to the lawsuits challenging the reauthorization of the law.

"Each of these lawsuits claims that we've attained a new era of electoral equality, that America in 2011 has moved beyond the challenges of 1965, and that Section 5 is no longer necessary. I wish this were the case. The reality is that -- in jurisdictions across the country -- both overt and subtle forms of discrimination remain all too common."

If the Supreme Court decides to hear a challenge to Section 5, it is not likely to occur until after the election.

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