Time to Change the Voting Rights Act?

WASHINGTON, Sept. 14, 2012 -- There are some who believe that a central provision of the Voting Rights Act is living on borrowed time.

Section 5 of the law says that certain states with a history of voter discrimination must clear any change to their election laws with federal officials in Washington.

But several of those states argue that Congress was wrong in 2006 to extend Section 5 for another 25 years, and they are asking the Supreme Court to take up the issue.

"Section 5 is under challenge like never before," says Richard L. Hasen, an election law expert at the school of law at the University of California, Irvine.

There are nine states covered by the law, mostly in the South, and parts of seven more.

Attorney Bert W. Rein, who is representing Shelby County, Alabama, has filed one challenge, arguing that while Section 5 served a noble purpose when it was signed in 1965, "Things have changed in the South."

Rein is asking the Supreme Court to overturn a lower court decision that found that Congress, "after assembling and analyzing an extensive record, made its decision: Section 5's work is not yet done."

In court papers Rein argues federalism principles: "Placing a jurisdiction in federal receivership raises fundamental questions of state sovereignty, and doing so selectively, absent compelling justification, unconstitutionally departs from the historic tradition that all the States enjoy 'equal sovereignty.'"

Alabama's attorney general and five other states filed papers with the court in support of Shelby County. The states ask the Supreme Court to take on the issue now, "before the covered jurisdictions have to spend still more money and time, and forgo still more elections without validly enacted state laws, on account of a statute premised on problems that are now two generations old."

They say that Section 5 unfairly singles out covered jurisdictions that are unable to implement laws similar to those that exist in states that are not covered by Section 5.

"The most vivid example comes from voter-identification laws: Indiana's sovereign policymakers are free to enact such requirements, but on account of DOJ's administrative fiat, the equally sovereign policy makers in Covered Jurisdictions are not," writes Thomas C. Horne, Arizona's attorney general.

According to the National Conference of State Legislatures, 33 states have some kind of voter ID law. In the last month New Hampshire and Virginia -- fully and partly covered by Section 5 -- have received pre-approval for voter ID laws. Texas and South Carolina, also covered, were blocked. Their laws require a photo ID when someone registers.

Section 5 has been reauthorized by Congress four times and the Supreme Court has upheld its constitutionality in the past. In 2009, however, in a related case that sidestepped Section 5's constitutionality, Chief Justice John Roberts issued a warning: Some members of the court had "serious misgivings" about its constitutionality.

Roberts wrote, "The historic accomplishments of the Voting Rights Act are undeniable. When it was first passed, unconstitutional discrimination was rampant and the registration of voting-age whites ran roughly 50 percentage points or more ahead of black registration in many covered States."

But he said that times have changed. "Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels."