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."
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.