Shelby County in Alabama has raised a new constitutional challenge to Section 5 of the Voting Rights Act, under which jurisdictions with a history of racial discrimination have to "preclear" changes to their voting systems. Shelby County is arguing that while Section 5 was once justified by large-scale racist disenfranchisement of blacks, times have changed and jurisidictions that once were marred by discrimination no longer are, and others that weren't back then have such problems now. The legitimacy of the argument notwithstanding, Pema Levy writes that Alabama doesn't appear to be one of those places:
In this case, the NAACP Legal Defense Fund demonstrated the persistent racism by showcasing the redistricting effort by the city of Calera, Alabama, in the county bringing the suit. A few years ago, the city eliminated its majority-black city-council district, and thus its only African American city councilman. The DOJ voided the election and ordered a second redistricting that revived the majority-black district and their representative, prompting the challenge. Of course, you need only go back a few days to see voter-suppression tactics at work across the country. Texas, North and South Carolina, Wisconsin, Kansas, and a few other states are pushing voter-ID laws that, as the Prospect reported earlier this month, disenfranchise poor and minority voters.
Last time Section 5 was challenged, the Supreme Court basically argued that Section 5 was unconstitutional but oddly decided to rule narrowly and simply exempt Northwest Austin Municipal Utility District No. 1 from Section 5 coverage. At oral argument Chief Justice John Roberts practically accused the attorney defending Section 5 of discrimination for suggesting that Southerners might be more likely than Northerners to disenfranchise blacks in the voting booth. There are jurisdictions outside the South covered by Section 5, but Roberts seems to think history never happened.
In any case, as Levy notes "times have changed" was a big part of the majority's argument, the suggestion being that the election of Barack Obama meant that there's no longer a need for that kind of federal oversight because racism no longer exists.
There's still plenty of appetite, though, for the kinds of election-law changes that are more likely to disenfranchise minorities -- Dave Weigel points to a particularly egregious example in Texas, where people with concealed carry permits and people born before 1931 are exempt from showing photo ID at the polls. This suggests the Republican-dominated legislature understands perfectly well that such laws put an undue burden on voters, which is why it's important to make sure that people more likely to vote Republican don't face them.
The ongoing persistence of racial discrimination aside, and the racially polarized voting patterns that make partisan disenfranchisement of minority groups attractive to those who would do so, the biggest reason that Shelby County's suit shouldn't be successful is that its problem has already been solved. There is a bailout provision in Section 5, and since 2009, a number of jurisdictions have bailed out, including cities in Georgia and North Carolina. Gerry Hebert at the Campaign Legal Center e-mails to say that he has about 15 other bailout cases pending at the moment.
It's the other problem -- how to get jurisdictions that do discriminate against voters but weren't originally included in Section 5 into the preclearance process -- that hasn't been resolved yet.
