Since 1965, Section 5 of the Voting Rights Acthas been a key tool used by civil rights and election reform advocates to protect the franchise in the South. By requiring states and counties to “pre-clear” major election changes with the Department of Justice, the measure has allowed groups to challenge a variety of state laws that threatened to disproportionately hurt African-American and other historically disadvantaged voters. But Section 5 has come under increasing scrutiny from conservative lawmakers and the Supreme Court itself. Three years ago, in alawsuit brought by a Texas sewer district, the court came close to striking down Section 5 on the grounds that it represented an unconstitutional over-reach by Congress over states’ rights.
While the Supreme Court didn’t end up striking down Section 5 in the Texas case, their opinions signaled a displeasure with the provision. That fueled more challenges, from a small-town Kinston, North Carolina lawsuit over non-partisan elections (still pending) to the more epic issue of Texas redistricting (which just this week the court suggested would not be used to challenge Section 5).
Now election law expert Rick Hasen sees another, more immediate threat on the horizon: Legal battles over the Department of Justice’s increasing role in challenging voter ID bills that passed in several states last year.