Appeals court upholds key provision of Voting Rights Act. Supreme Court could loom

In 2011, both states adopted voter ID laws patterned on an Indiana voter ID statute that was upheld by the Supreme Court in 2008.

Normally, that existing precedent would be enough to insulate the statutes from legal challenge. But because both Texas and South Carolina are among “covered” jurisdictions with past histories of discrimination under the VRA, both states had to submit the laws to the Justice Department for pre-approval. Despite the Supreme Court precedent in Indiana, the Justice Department blocked both laws.

“Why should voter ID laws from South Carolina and Texas be judged by different criteria from those governing Indiana,” Williams asked.

“Despite a congressional record of over 15,000 pages and 22 hearings, there is little to suggest that [the VRA’s] coverage formula continues to capture jurisdictions with especially high levels of voter discrimination,” Williams said.

The case is expected to be appealed to the Supreme Court. In a 2009 decision, Chief Justice John Roberts raised significant questions about the constitutionality of Section 5 of the VRA. In particular, he questioned the law’s reliance on old criteria that may no longer be relevant.

Some legal analysts read the comments as an invitation for states and other covered jurisdictions to file their own lawsuits seeking to overturn the provision.

“Things have changed in the South,” Chief Justice Roberts wrote. “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”

The chief justice added: “It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the act. But the act imposes current burdens and must be justified by current needs.”

Election law expert, Richard Hasen, said on his Election Law Blog that he expects Shelby County to file an appeal and for the Supreme Court to hear the case next term.

Mr. Hasen said pending appeals over the Texas and South Carolina voter ID laws might also reach the high court, testing the same issue.

“As to what the court will do,” he wrote, “my money is on the court holding – one way or the other – that Section 5 can no longer be enforced against the covered states.”

Civil rights advocates praised the appeals court decision.

“Today’s ruling is the latest in an unbroken line of cases upholding the constitutionality of the Voting Rights Act’s most effective protection,” Debo Adegbile of the NAACP Legal Defense and Educational Fund said in a statement.

“Some have questioned whether the protection is still needed. The recent efforts to suppress minority voters make it crystal clear that we will need this core voter protection,” he said.

“This is an important victory in the defense of Section 5,” said Barbara Arnwine of the Lawyers Committee for Civil Rights Under Law. “The court properly found that this key provision of the Voting Rights Act is still needed to ensure that minorities can fully exercise their constitutional right to vote free from discrimination.” 

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