by Sarah Childress

Update Nov. 9: The Supreme Court said today that it would hear a case challenging the constitutionality of a key provision of the Voting Rights Act.

The court said it would hear Shelby v. Holder, a suit brought by Shelby County, Ala., that alleges that the law violates the Constitution by imposing unfair burdens on some states to protect the voting rights of minorities.

The 1965 law prevents states from enacting rules that bar minorities from voting. Now, Shelby County, Ala., and a group in Kinston, North Carolina, are arguing that the act is a relic of the past.

Now that it’s granted a hearing, the court is likely to agree. Read on for more about Shelby and why that section of the VRA may now be overturned, from our post last week.

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These are hardly the first challenges to the Voting Rights Act — the first came a year after the act was passed, in 1966. But these two cases, Shelby County v. Holder and Nix v. Holder, are among the more significant because this time, there’s a possibility the Supreme Court may decide to strike the act down.

The Supreme Court avoided ruling on this question in a 2009 case, but in that decision, Chief Justice John Roberts seemed to suggest that the Voting Rights Act’s time may be coming to an end. “In part due to the success of that legislation (the VRA), we are now a very different Nation,” he wrote at the time. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”

At the heart of both cases is a provision of the act known as Section 5, which bars certain jurisdictions — cities, counties and whole states — with a history of discrimination from making any changes to voting laws without approval from the attorney general or the U.S. District Court in Washington, D.C.

The law originally was set to expire within five years, in 1970, if the covered jurisdictions could show they no longer discriminated against minority voters.

Instead, Congress has renewed the act four times. Most recently, in 2006, Congress, after reviewing an extensive record of discriminatory behavior in the jurisdictions, reauthorized Section 5 for another 25 years. Nine states and several counties and townships are currently covered under the law.

“Without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years,” Congress said in its most recent renewal.

“You have to be familiar with what goes on in these covered jurisdictions and who controls the show, and what they’re willing to do to suppress minority political participation,” said Laughlin McDonald, director of the American Civil Liberties Union’s Voting Rights Project. Several states have “implemented these onerous photo ID requirements and restricted opportunities for third-party voter registration, and shut down the number of days for early voting.”

“They’re trying to do it a little more subtly (than in 1965) but the impact is the same, the motivation is the same,” he added.

In both cases in front of the court tomorrow, the Justice Department maintains that discrimination against minority voters is still very much a problem, particularly in the covered jurisdictions. It also points to an escape hatch in the law: Jurisdictions can be released, or “bailed out” from Section 5 by showing that they no longer discriminate against minority voters. So far, since 1965, more than 100 municipalities have done so.

Those who oppose Section 5 of the act today say that it’s no longer relevant, and that the patchwork of covered jurisdictions is based on dated information.

“Three generations of federal intrusion on state prerogatives have been more

than enough to kill Jim Crow,” the Cato Institute argued in an amicus brief (pdf) siding with Shelby County. It said that the act has always violated the Constitution by allowing the federal government to dictate to states. That was necessary in 1965 to protect blacks’ right to vote, Cato said, but it isn’t any longer: “This Court needs to address the fundamental constitutional defects arising under the modern VRA.”

So how might the Supreme Court overturn it if it does hear the case? One argument was outlined by Judge Stephen Williams, who dissented in the Shelby appeal. He said that the states in covered jurisdictions have standards “quite different from those governing the rest of the nation.”

“Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana?” he asked.

If the Supreme Court decides to hear one or both of the cases, a decision can be expected in 2013.

The Cases Before the Court Shelby County v. Holder

The Shelby County case argues that it should no longer be considered under Section 5, but also that Congress’ 2006 renewal of the act was unconstitutional because it relied on outdated voting data to determine which jurisdictions should be covered by the provision. The U.S. Court of Appeals sided with the Justice Department in the Shelby case. The court reexamined the evidence that Congress used in deciding to renew the act. In its decision (pdf), the court noted that 81 percent of the cases since 1982 where discrimination was found occurred in districts covered by the Voting Rights Act. Nix v. Holder

This case presents a related challenge. The plaintiffs include Kinston, N.C. resident John Nix and a group called the Kinston Citizens for Non-Partisan Voting, which wanted to allow candidates to run for city office without announcing a party affiliation. The Justice Department said that the move would disenfranchise black voters who wanted to vote a straight ticket. Voters later approved the plan in a 2008 referendum, however, and the Justice Department has since reversed its course and allowed the nonpartisan voting to proceed. That makes the case moot, the Justice Department argues. The Supreme Court could still consider the constitutionality part of the argument in Nix, although experts say it’s less likely to do so now.