A little over a year ago, I wrote that Attorney General Eric Holder and the Department of Justice may have gambled away Section 5 of the Voting Rights Act by blocking a South Carolina voter-ID law on its basis. Holder blocked a law that matches another in Indiana, which had already passed constitutional muster, but Indiana isn’t one of the states that needs “pre-clearance” on any changes to electoral law. On Wednesday, the Supreme Court hears arguments on another case that could spell the end of the clause that forces a number of states even before they get to South Carolina:
The Voting Rights Act gave the federal government greater powers to prevent racial discrimination. For the past 48 years, the Justice Department has routinely monitored elections and reviewed changes to any voting rules, ranging from poll locations and hours, to registration and identification requirements and the redrawing of legislative district lines.
The issue before the Supreme Court in next Wednesday’s oral arguments in “Shelby County v. Holder” is just one part of the Voting Rights Act — Section 5 — which requires 9 states and parts of 7 others to obtain Justice Department approval, known as “preclearance,” before changing voting laws or maps.
Some of the states covered in full by the Act, like Alabama, where the plaintiff’s case originated, contend that Section 5 is an outdated burden, because racial discrimination is “scattered and limited.”
“It’s not the same as it was as 1964, and to use a test from 1964 is way out of date,” Shelby County Attorney Frank Ellis told CBS News Affiliate WIAT/Birmingham. “It’s time for it to be set aside.”
The act’s defenders believe the law is as relevant as ever and look no further than last year’s election, when states such as Florida and Ohio shortened the days and times for the ever popular early voting.
Proponents also point to a surge in states passing laws requiring voters to produce a government-issued photo ID in order to exercise their right to vote.
Four southern states covered by the Voting Rights Act – Alabama, Mississippi, South Carolina, and Texas — and one northern one, New Hampshire — were among 10 states to adopt strict photo voter ID laws in the past two years. Earlier, Georgia and Louisiana did so.
Jan Crawford presents a balanced report on the issues at hand, noting among other points that this would not affect the rest of the Voting Rights Act. Discrimination can still be brought to light in court — the only process affected would be the pre-clearance requirements:
To get an idea of the disparate treatment that Section 5 ends up delivering, let’s go back to my December 2011 post and the comparison between Indiana and South Carolina:
One of the forms of acceptable photo ID is the South Carolina identification card issued by the state … for free. Applicants have to show proof of residency in the state and a birth certificate or passport that shows US citizenship. If they lack a birth certificate, the state will provide a certified copy for $12, either in person, by mail, or by phone for an additional fee of $12.95. Note that the federal government requires states to check photo-IDs to get gun permits, another right explicitly guaranteed by the Constitution, for which all of these same fees would apply in South Carolina.
Interestingly, this is almost identical to Indiana, which has a provision for free state IDs but only for the purpose of voting. They require the same documents to get the state ID, and charge between $5 to $12, depending on which county the birth record resides. Why is Indiana important? Because the Supreme Court approved an identical photo-ID voting requirement in Indiana in 2008, not to mention one in Georgia, also covered by Section 5, in 2005 …
In the 2008 case, Section 5 wasn’t an issue, since Indiana wasn’t a covered state under its terms. It will be a big part of the case when Haley pushes it to the Supreme Court, not just on the thin 1.6% difference that the DoJ cited, but because the Court will have to take into account the 2008 case when it decides on South Carolina’s law. They can’t uphold the DoJ’s interpretation without relying on Section 5, but overruling the DoJ on this would all but eviscerate that section — and return the states under its aegis to the same voting-rights standards as every other state in the union, even if the Supreme Court doesn’t explicitly end Section 5, which the 2009 case showed they seriously considered doing at the time.
In 2009, the justices openly wondered just how long Section 5 was going to remain in force, but preferred to have Congress address it. That may be the outcome in this case, too, but the court may lose patience sooner than people expect. The fact that they’re taking this case makes it look like their patience has at least become taxed. It should be an interesting set of arguments this Wednesday, indeed.