A central part of election law dating back to the historic civil rights struggles of the 1960s could be scrapped or curtailed in the coming months as a critical case makes its way through the courts. The fate of a key part of the 1965 Voting Rights Act is now being decided by the federal appeals court in Washington, as a three-judge panel weighs an appeal from Shelby County, Ala. asking the court to find that Congress exceeded its power when it renewed section 5 of the law in 2006.
Under section 5, nine states, mostly in the South but also including Alaska and Arizona, and dozens of counties and townships in other states, must get permission, or “preclearance,” from the Justice Department or a federal court in Washington for any change in voting procedures, no matter how small, that they seek to make. Just last month, the Justice Department used its section 5 power to block South Carolina’s law that would have required voters to show photo identification before they cast their ballot.
Why would section 5 of the VRA – which Congress renewed for another 25 years in 2006 — be unconstitutional? Because, said Shelby County’s lawyer Bert Rein during oral argument Thursday before the appeals, the formula used to determine which states are covered by section 5 is “archaic” – based on voter turnout and registration data from 1972 — and the flagrant racial intimidation and discrimination in voting procedures that prevailed in those states when the law was written in 1965 and renewed in 1970, 1975, and 1982, no longer exists.