One of the arguments being made by those who advocate repealing Section 5 of the Voting Rights Act, which forces regions with a history of discrimination to have their election law changes "pre-cleared" by the Justice Department, is that it's no longer needed and is therefore an unconstitutional infringement on state's rights, and that Section 5 operates as a kind of "scarlet letter" by punishing states for their past.
Part of the paradox is that preclearance prevents some of the most egregious and discriminatory changes from being enacted at all, which in turn allows the plaintiffs in the case to argue such discrimination is nonexistent. As for the "Scarlet Letter" thing, there is a "bailout" provision in the VRA that allows covered jurisdictions to prove that they no longer need be covered by preclearance. The Campaign Legal Center's Executive Director J. Gerald Hebert, a former acting chief of the Voting Rights Section of the Justice Department, has filed an amicus brief in the upcoming Supreme Court case Northwest Austin Municipal Utility District Number One v. Holder, which will revisit the constitutionality of the VRA. The brief was filed on behalf of seven Virginia jurisdictions that have "bailed out" of preclearance, and argues that the conditions for bailing out are not cumbersome or complicated.
Although the VRA was recently renewed by a majority Republican Congress and signed by a Republican president, there is some concern that the conservative leaning Supreme Court may find Section 5 unconstitutional anyway, especially after the recent Supreme Court ruling that many voting rights advocates saw as weakening some of the VRA's protections.
-- A. Serwer
