After the Supreme Court wiped out the most important plank of the Voting Rights Act (VRA) last summer, a broad range of experts told msnbc that the law’s key remaining pillar may now be at risk from the court’s conservatives. And lately there’s concern that efforts to stop strict voter ID laws could, perversely, give Chief Justice John Roberts and co. the chance they’ve been looking for. Striking down or significantly narrowing that key pillar, known as Section 2, would essentially render the most successful civil-rights law in U.S. history a dead letter. In a nutshell, Section 2 prohibits racial discrimination in voting. Though it’s a less effective tool than Section 5—which, until it was neutered by the Supreme Court, required certain regions to get federal approval before their election laws could go into effect—it’s still an important protection. The Justice Department is using it to challenge Texas’ voter ID law, as well as North Carolina’s sweeping voting law.
Since Congress amended it in 1982, Section 2 has barred not only voting laws that are intended to discriminate against minorities, but also those that have the effect of discriminating. That’s largely because, these days, very few people in power explicitly declare an intention to racially discriminate, so a law that banned only intentional discrimination would be virtually useless.
But many conservatives, including John Roberts, think the “effects” standard is too broad. As a young lawyer in the Reagan Justice Department, Roberts wrote a memo opposing that 1982 move by Congress to broaden Section 2 to cover laws with discriminatory effects, saying it would “raise grave constitutional questions.” The 14th and 15th Amendments explicitly ban only intentional discrimination.