When the Justice Department recently blocked implementation of South Carolina’s photo ID law, analysts were quick to suggest that the action was risky and could be the death of Section 5 of the Voting Rights Act. They were wrong to sound the alarm. Recent discriminatory actions by South Carolina and other covered states give Attorney General Eric Holder no choice but to block their implementation. In fact, the very actions that forced Holder’s hand may ultimately save the act from the daggers of Chief Justice John Roberts and his band of conservative justices, who seem ready to strike it down as unconstitutional.
Because of the actions of South Carolina and other covered states, the future of the embattled act has brightened considerably — though access to the ballot grows more threatened. By engaging in a legislative orgy that erected substantial new barriers to minority voting in the past year, covered jurisdictions, which are legally required to have new voting changes approved by the Department of Justice , have dramatically altered the landscape surrounding constitutional challenges to Section 5. This has buttressed the case for its continued need.
The law, originally passed with a five-year sunset, has been renewed by Congress four times, most recently in 2006. With each renewal, covered jurisdictions – identified as having had the worst records of disfranchisement — have pressed the case that there is no longer a basis for singling them out for special, disfavored treatment. They cite statistics that show increased registration rates and a declining number of objections and lawsuits in covered states, arguing that Congress lacked authority to extend the life of Section 5.