Sometime in the coming weeks, the Supreme Court is widely expected to grant review in Shelby County v Holder, setting up a huge constitutional showdown over the constitutionality of the preclearance requirement contained in Section 5 of the Voting Rights Act, in many ways the heart and soul of the Act.  In the meantime, a string of conservative judges have been quietly but powerfully making the case why the preclearance provision of the Voting Rights Act is still necessary to prevent and deter racial discrimination in voting. 

The latest example comes in South Carolina v. United States, a closely watched case concerning South Carolina’s newly-enacted voter ID law.   On October 10, in another victory for the constitutional right to vote this election season, a three-judge District Court in Washington, D.C. held that South Carolina’s voter ID law could not be put into effect for the upcoming 2012 elections consistent with the preclearance requirement of the Voting Rights Act.  The unanimous opinion of the court, authored by Judge Brett Kavanaugh, one of the nation’s leading conservative jurists, observed that the Voting Rights Act of 1965 was “among the most significant and effective pieces of legislation in American history” that “brought America closer to the fulfilling the promise of equality espoused in the Declaration of Independence and the Fourteenth and Fifteenth Amendments to the Constitution.”  Noting that “the voters who currently lack qualifying photo ID are disproportionately African American,” and that the election is less than a month away, Judge Kavanaugh concluded “there is too much of a risk to African American voters” to permit immediate implementation of the South Carolina measure. 

While the panel agreed that South Carolina could enforce its voter ID law beginning in the 2013 elections, the court unanimously agreed that a broad interpretation needed to be given to the exceptions to the photo identification requirement contained in the South Carolina law.  Judge Kavanaugh’s opinion stressed the importance of the law’s “reasonable impediment” provision, which permits a citizen to cast a provisional ballot if he or she presents a non-photo voter registration card and signs an affidavit explaining the reason why he or she was unable to obtain a photo identification.  As the unanimous court explained, this provision was critical to ensuring that the voter ID law was consistent with the Voting Rights Act and did not disenfranchise African Americans, who disproportionately lack photo ID.  Because of the “reasonable impediment” provision, Judge Kavanaugh explained, the voter ID law “will deny no voters the ability to vote and have their votes counted if they have the non-photo voter registration card that could be used to vote under pre-existing South Carolina law.”  Importantly, the court emphasized that “responsible South Carolina officials have confirmed repeatedly” that “any reason asserted by the voter on the reasonable impediment affidavit for not having obtained a photo ID must be accepted . . . . The reasonableness of the listed impediment is to be determined by the individual voter, not by a poll manager or county board.”  

Significantly, the court noted that “without the expansive reasonable impediment provision,” the South Carolina law might well have failed the test for preclearance, observing that the voter ID requirement, standing alone, “could have discriminatory effects and impose material burdens on African American voters . . . .”  Further, the court noted that any change in interpretation or enforcement of the “reasonable impediment” provision made either by South Carolina officials or the state courts would have to be separately precleared. 

In an important concurring opinion, Judge John Bates (an appointee of President George W. Bush who authored the district court opinion in Shelby County upholding Section 5), joined by Judge Colleen Kollar-Kotelly, wrote separately to emphasize “the vital function that Section 5 of the Voting Rights Act has played . . . .  Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been restrictive. Several legislators have commented that they were seeking to structure a law that could be precleared.”  Highlighting that the way in which the Voting Rights Act deters racial discrimination in voting, Judge Bates explained that  “the key ameliorative provisions were . . . shaped by the need for preclearance” and that “the evolving interpretation of these key provisions . . ., particularly the reasonable impediment provision, . . . were driven by South Carolina officials’ effort to satisfy the requirement of the Voting Rights Act.”  “The Section 5 process here,” Judge Bates explained, “demonstrates the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory changes in state and local voting laws.”

Conservative opponents of the Voting Rights Act often disparage the idea that the Voting Rights Act deters state and local governments from engaging in racial discrimination in voting.  For example, during oral argument three years ago in NAMUDNO v. Holder, a case in which the Court came dangerously close to striking down the preclearance requirement, Chief Justice Roberts ridiculed the notion that the Voting Rights Act has a deterrent effect, comparing the Act to an elephant whistle.  “I have this whistle to keep away the elephants . . . [T]here are no elephants, so it must work.”  But, as Judge Bates demonstrated, the Act does, in fact, deter racial discrimination in voting, encouraging states to be mindful of the Fifteenth Amendment’s prohibition on racial discrimination in voting when they are fashioning and interpreting their laws: there may not be elephants in South Carolina, but there still is a threat of laws that illegally disenfranchise African Americans.  This deterrent effect, together with the overwhelming evidence of racial discrimination in voting amassed by Congress when it reauthorized the Voting Rights Act in 2006, and corroborated in a host of recent cases, shows why the Voting Rights Act plainly falls within the broad power of Congress to protect the right to vote free from racial discrimination explicitly conferred by the Fifteenth Amendment, and why Section 5 is still needed.