Back in 1966, the Supreme Court ruled that Section 5’s extraordinary intrusion into state sovereignty was justified by the “unique circumstances” of Jim Crow and the blatant discrimination in voting that was occurring in some jurisdictions. But it noted that Section 5 was enacted as a temporary measure, and would expire after only five years — in 1970. That was over four decades ago.
The reality today is that Section 5 has become a politicized weapon wielded by the Justice Department, which last year, for example, used it to block South Carolina’s adoption of a voter-ID law. A federal court found Justice’s objection to be without merit and based on dubious evidence of discrimination; the court ordered that South Carolina be reimbursed for its legal costs. As Hans von Spakovsky of the Heritage Foundation notes: “Of the 12,000 covered states, municipalities, counties, city governments, in the last ten years, there have only been 37 objections under Section 5.”
So while Section 5 is rarely invoked, it remains a dangerous political club the federal government can use to browbeat those states covered by it. Voting-rights groups are convinced that racial discrimination in elections is rampant, exemplified by photo-ID laws that inconveniently for them are supported by clear majorities of African Americans and Hispanics. As Zach Roth of MSNBC told me this week in a Yahoo.com forum: “This challenge to the VRA comes out of the same conservative movement that’s behind restrictive voting laws across the country recently: photo ID, cutbacks to early voting, purges of rolls, etc. This would be the biggest win yet for those looking to make voting harder.”
Constitutionally, the Supreme Court would be on firm ground in striking down Section 5. Politically, its demise would inject a healthy dose of common sense into the debate over voting rights. Concerns about the discriminatory effects of voter laws should be handled by courts and legislators, not by federal bureaucrats lording it over those states unlucky enough to be caught in a regulatory trap.
— John Fund is a national-affairs columnist for NRO.