President Lyndon Johnson addresses officials prior to signing the bill in 1965. Voting Rights Act under siege

In a political system where even the most trivial issues trigger partisan rancor, the Voting Rights Act has stood for several decades as a rare point of bipartisan consensus.

Until now.


An intensifying conservative legal assault on the Voting Rights Act could precipitate what many civil rights advocates regard as the nuclear option: a court ruling striking down one of the core elements of the landmark 1965 law guaranteeing African Americans and other minorities access to the ballot box.

At the same time, the view that states should have free rein to change their election laws even in places with a history of Jim Crow seems to be gaining traction within the Republican Party.

“There certainly has been a major change,” said Rick Hasen, a professor of election law at the University of California at Irvine. “Now, you have a whole bunch of credible mainstream state attorneys general and governors taking this view. … That would have been unheard of even five years ago. You would have been accused of being a racist.”

Some of the shift appears to be driven by resentment of what tea party members and others perceive as an overgrown, out-of-control federal government, as well as by widespread concern among Republicans about claims of voter fraud at the polls. Part of the change could also stem from more vigorous enforcement of voting rights laws by President Barack Obama’s Justice Department.

The issue has surfaced in the Republican presidential contest, including at one of the televised debates, and could move to the front burner within weeks as a federal appeals court in Washington prepares to rule on the leading lawsuit against the Voting Rights Act. That case, brought by Shelby County, Ala., is backed by the attorneys general of Alabama, Arizona and Georgia. At least three similar constitutional challenges are pending.

When the law last came up for renewal in 2006, there was some grumbling from conservative lawmakers, particularly about the provisions that require seven states — including Arizona, Mississippi, South Carolina and Texas — and parts of nine others to submit any changes to voting laws, rules and even polling place locations to the Justice Department or a federal court for advance approval.

Despite the misgivings, the final vote for the bill was a lopsided 390-33 in the House. And in the Senate, critics of the law couldn’t pick up a single no vote. It passed, 98-0.

“There are obviously more elected officials today than there were who are willing to question the wisdom of keeping this provision” of the law, said the American Enterprise Institute’s Edward Blum, a longtime critic. “In 2006, it was very lonely being a voice against reauthorization.”

President George W. Bush didn’t just support renewal of the law — he held a Rose Garden celebration for the bill signing that included the entire Congressional Black Caucus and bipartisan supporters from the Senate and House. “Civil rights leaders from around the country were invited,” Blum said. “It was a big deal.”

A key indication that political consensus is crumbling came during a GOP presidential debate last month in South Carolina.

Fox commentator Juan Williams asked then-candidate Gov. Rick Perry of Texas about the federal role in guaranteeing voting rights. Perry drew raucous cheers from the crowd for promising that he would not allow the federal government to take actions “against the will of the people.”

“Are you suggesting on this Martin Luther King, Jr. Day that the federal government has no business scrutinizing the voting laws of states where minorities were once denied the right to vote?” Williams asked.

“I’m saying that the state of Texas is under assault by the federal government,” Perry replied. “I’m saying also that South Carolina is at war with this federal government and with this administration. If you look at what this Justice Department has done, not only have they taken [South Carolina] to task on voter ID, they’ve also taken them to task on their immigration law. When I’m the president of the United States, the states are going to have substantially more right to take care of their business. And not be forced by the EPA, or by the Justice Department for that matter, to do things that are against the will of the people.”

The remaining Republican candidates haven’t made such sweeping statements rejecting federal authority, but they have railed against the Justice Department for using the preclearance provision known as Section 5 to block a South Carolina law that requires voters to show photo identification at the polls. Some civil rights advocates say the GOP hopefuls’ rhetoric suggests the entire preclearance process is illegitimate.

“That strain has been there. It’s a natural to play out in the Republican primaries,” said William Yeomans, who served as chief Judiciary Committee counsel to the late Sen. Ted Kennedy (D-Mass.). “The Republican Party has become much more conservative than it was in 2006. … And of course it plays well in red states. All of the covered states are red states. They’re appealing to a very conservative segment of people in red states who believe the federal government is big and out of control.”

The lawsuit brought by Shelby County was argued this month at the U.S. Court of Appeals for the D.C. Circuit and could be on a fast track for the Supreme Court.

The provision “was constitutional in 1965 and 1975. And Alabama was, shamefully, a big reason why,” said a brief filed in November by lawyers for Alabama Attorney General Luther Strange. “But in part because of Section 5, Alabama has changed, and the statute is no longer a necessary and proper means of redressing constitutional injury.”

Strange’s brief argues that African Americans now serve in the state Legislature at rates comparable to their percentage of the population and that white and black voters have about the same registration rate.

Voting Rights Act critics also say the list of 16 states that get special scrutiny is badly outdated. “It makes no sense [now] for the State of Texas but not the State of Arkansas to be covered,” Blum said.

A series of cases filed recently by South Carolina and other states seek approval for voter ID laws and other voting changes. However, some of those cases also hint that the act’s pre-clearance provision could be unconstitutional.

Blum said that despite the support the legal challenges are getting, most federal officeholders are not rushing to embrace them.

“There is greater skepticism, [but] I don’t know of anyone in Congress who has taken to the well and given a speech on this,” he said.

As the lawsuits roll forward, top Justice Department officials are publicly praising the preclearance rule.

Speaking at the Johnson Presidential Library in Texas late last year, Attorney General Eric Holder called the provision the “keystone” of the Voting Rights Act. “The reality is that — in jurisdictions across the country — both overt and subtle forms of discrimination remain all too common,” Holder said.

The head of the Justice Department’s Civil Rights Division, Tom Perez, said the provision ensures that covered legislatures and cities protect the rights of minorities during redistricting and revisions to voting procedures.

“We need the prophylactic impact,” Perez said in an interview. “The remarkable impact … can’t simply be measured by the number of objections that we bring. It’s measured in behavioral changes.”

Perez acknowledged that the rule is under attack, but he predicted it will survive.

“Voting rights has been and continues to enjoy bipartisan support, not withstanding the cacophony of a few,” Perez said. “There’s a tendency around the nation to try to polarize so many issues, and I think the American people want us to come together around common values. And the right of access to the ballot for all eligible people is one of those common values.”

Yet even some liberals now believe that Section 5’s days are numbered, in part because of indications from the Supreme Court in 2009 that many justices doubt the most recent renewal of the law was constitutional.

Dan Tokaji, a professor of election law at Ohio State, said the chances the high court will strike down the core of the law are “between likely and extremely likely.”

“They know striking the statute down would be incredibly controversial. … It would be an even bigger deal than what the court did in Citizens United,” Tokaji said.

If the key provision were removed, he said, “I don’t think we would go back to the days of Jim Crow. We wouldn’t have literacy tests or other of the most blatant disenfranchising devices used in 1965. On the other hand, it would be easier for states to enact more subtle measures that make voting more difficult and that dilute the vote. … The impact will probably be most significant at the local level [where] a lot of things might slip by without anyone noticing it.”

Since minorities tend to vote Democratic, getting rid of Section 5 would seem to benefit Republicans. However, experts say tossing the provision might actually help Democrats because it could cut down on gerrymandered districts.

“Republicans have often been the most ardent supporters of Section 5,” Blum said. “It’s an old tale: Create a safe African-American or Hispanic district, and the districts surrounding those become more white.”

But Williams, the Fox news analyst and author of books on the civil rights movement, said some Republicans seem almost eager to go after the Voting Rights Act.

“When you have hard evidence of a past practice and you say you still don’t buy into it, then there does come a point where you say: ‘What is this really about? Repressing the minority vote?’” Williams said in an interview.

Williams said he thinks the current round of doubts about the law is also fueled by a perception that voter fraud is rampant, particularly in inner cities and areas with larger concentrations of minorities.

“There’s a racial element to this,” he said.