Last week, in a case closely watched around the country, the U.S. Court of Appeals for the District of Columbia Circuit ruled that a key section of the 1965 Voting Rights Act was constitutional. But it also exposed the fault lines that will likely push the case to the Supreme Court, posing one of the gravest threats to a provision in the Act that has been used most recently to force court review of voter ID laws in Southern states. In a 2-1 decision in the case of Shelby County v Holder, the justices upheld Section 5 of the Act, an embattled component of the landmark civil rights measure which requires all or part of 16 states — nine in the South — to get federal approval before making major changes to elections.
A product of civil rights movement pressure, Section 5 was instantly challenged in court by the state of South Carolina, with one of the key arguments being that they were being unfairly singled out. The Supreme Court responded in 1966 with an opinion upholding the idea targeting certain states and counties, with Chief Justice Earl Warren writing that “an insidious and pervasive evil … had been perpetuated in certain parts of our country.”
Sensing that targeting certain areas for court scrutiny of elections would invite a backlash, in 1965 Congress insisted that Section 5 should be reviewed every few years to see if it was still needed. In the last such review in 2006, the U.S. House voted 390-33, and the Senate 98-0, to extend the Act, citing evidence that significant barriers to voting still existed. But that hasn’t stopped a steady series of legal challenges to the Act and Section 5, even though the Department of Justice had been steadily decreasing the number of times it blocked election changes on VRA grounds. A 2006 report by the U.S. Commission on Civil Rights found that DOJ had objected in only .1 percent of cases brought before them [pdf].