When the Supreme Court hears oral arguments Wednesday on the Voting Rights Act, opponents will argue that a centerpiece of the law aimed at letting the federal government proactively thwart attempts at voter discrimination has outlived its validity. “The only reason Section 5 was originally justified and upheld by the courts was because of Jim Crow — the unusual circumstances at the time in terms of voter disenfranchisement,” Ilya Shapiro, the editor-in-chief of the Cato Supreme Court Review who filed an amicus brief in the case, told TPM. “I don’t think there’s a way to justify Section 5 anymore.” Section 5 of the Voting Rights Act requires state and local governments across 16 states — mostly in the South — to seek preclearance from the Justice Department or a federal court before making any changes to their laws which affect voting. Shapiro said the point of the lawsuit is that residents in each of the covered jurisdictions are being treated unfairly.
“There’s a tremendous imposition of paperwork and litigation costs on these jurisdictions to making voting changes — even miniscule things like moving a polling place from a park to a school,” he said, pointing out that the vast majority of proposed changes get approved. “All this would say is that you would no longer have a presumption that everything that states in the covered areas do is unconstitutional.”
The case carries important implications, not merely for voting rights in the mostly southern regions targeted by Section 5 but also for the conservative legal movement’s longstanding efforts to limit the scope of federal power.
The lead plaintiff, Shelby County of Alabama, argues that although Section 5 was justified at the time to correct the evils of racism, it now lacks constitutional basis because the regions it singles out have experienced a dramatic rise in minority voter participation and because outright discriminatory laws like literacy tests are outlawed.