On the Friday before Christmas Day, the Department of Justice formally objected to a new South Carolina law requiring voters to produce an approved form of photo ID in order to vote. That move already has drawn cheers from the left and jeers from the right. The DoJ said South Carolina could not show that its new law would not have an adverse impact on racial minorities, who are less likely to have acceptable forms of identification.
South Carolina Gov. Nikki Haley denounced the DoJ decision blocking the law under Section 5 of the Voting Rights Act: “It is outrageous, and we plan to look at every possible option to get this terrible, clearly political decision overturned so we can protect the integrity of our electoral process and our 10th Amendment rights.” The state’s attorney general vowed to fight the DoJ move in court, and thanks to an odd quirk in the law, the issue could get fast-tracked to the Supreme Court, which could well use it to strike down the Voting Rights Act provision as unconstitutional before the 2012 elections.
The current dispute has an eerie echo. More than 45 years ago, South Carolina also went to the Supreme Court to complain that Section 5 unconstitutionally intruded on its sovereignty. Under the 1965 Act, states with a history of racial discrimination like South Carolina could not make changes in its voting rules—from major changes like redistricting to changes as minor as moving a polling place across the street—without getting the permission of either the U.S. Department of Justice or a three-judge court in Washington, D.C. The state had to show the law was not enacted with the purpose, or effect, of making minority voters worse off than they already were.
In South Carolina v. Katzenbach, the Supreme Court said the law requiring “preclearance” of voting changes, while an extreme intrusion on states’ rights, was necessary because lesser measures—like federal government suits over each discriminatory voting practice—had not worked. As Chief Justice Warren explained at the time: “Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests designed to prolong the existing disparity between white and Negro registration… . After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.”
That was in 1966. While much has changed since then (who would have expected South Carolina to elect an Indian-American woman governor?), what has not changed is that the same states that had to obtain preclearance in the 1960s still must do so today (though other states and parts of states were added in the 1970s). Preclearance is the reason Texas is fighting in the Supreme Court over its redistricting plans, and why Florida has not yet been able to implement tough new voting laws opposed by Democrats, the League of Women Voters, and minority groups in Florida. And while the new voter ID laws in South Carolina and Texas need DoJ approval, the new voter ID law in Wisconsin, and the likely new law in Pennsylvania can go into effect without federal approval because those states are not subject to Section 5.
Some conservatives have been pushing the argument that Section 5 is no longer constitutional, because the states subject to preclearance don’t present a special danger of racial discrimination. In 2009, the Supreme Court strongly signaled that this crown jewel of the civil rights movement may no longer be constitutional because of its interference with states’ rights. Chief Justice John Roberts was especially vocal at oral argument in the case, questioning whether Section 5 was still needed to stop racial discrimination, and why the problem with racial discrimination in voting was confined to those states subject to preclearance, asking Debo Adegbile, lawyer for the NAACP: “So is it … your position that today southerners are more likely to discriminate than northerners?”
While many read the court’s 2009 decision as an invitation for Congress to fix or update Section 5, Congress has done nothing. Meanwhile, the constitutional question has been percolating in the lower courts, and most knowledgeable observers expected the issue to get to the court in the next few years.