At his confirmation hearings, Roberts was confronted with memos he had written as a young Reagan administration lawyer in support of narrowing the Voting Rights Act. During the hearings, he said, "I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships. I was not shaping administration policy."
Richard L. Hasen, an election law expert at Loyola Law School, warned Congress in 2006 that the court could eventually strike down provisions of the law unless Congress updated it to take into consideration the law's success. He warned that some justices might not see enough recent evidence of intentional discrimination by states to justify the Justice Department's preclearance role.
"No one knows what would happen if Section 5 suddenly disappeared. It should stand, but it could use some updating," Hasen said.
Hasen is concerned that the court could find that the problems that do exist with minorities at the polls exist across the nation, not only in the jurisdictions covered by Section 5.
"The court could find less than a justification to single out these jurisdictions for additional scrutiny."
At the time, Hasen proposed a number of steps that would make it easier for some jurisdictions to no longer be subject to these special rules if they could prove they had taken enough steps to prevent racial discrimination in voting in their areas.
Congress declined to follow the recommendations.
"If Congress had followed these steps it would have been more likely that the court would reject arguments against the constitutionality, because the law would be more tailored to modern circumstances," says Hasen.
"That makes it more likely that the court could strike down the act as unconstitutional. Some justice might not see this as an appropriate remedy for today. You have to show that there is real evidence of intentional discrimination. An opinion that strikes down Section 5 could have negative implications for other civil rights laws as well. "
The Supreme Court will rule on the issue by late June.