Five reasons why Section 5 of the Voting Rights Act is in grave danger

President Johnson signs the Voting Rights Act of 1965 Four years ago, the Supreme Court punted on whether Section 5 of the Voting Rights Act of 1965 was constitutional, uniting behind the chief justice in an 8-1 decision on statutory grounds which delayed resolution of the key question. The Court strongly suggested to Congress that it was time to update the criteria for deciding which jurisdictions must submit their elections changes to DOJ for approval, which Congress chose not to do when reauthorizing the Act in 2006, noting:

[A] departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets.

... The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide. Congress heard warnings from supporters of extending §5 that the evidence in the record did not address "systematic differences between the covered and the non-covered areas of the United States[,] ... and, in fact, the evidence that is in the record suggests that there is more similarity than difference."

Well, Congress didn't act, and so Wednesday morning, the Supreme Court heard arguments in a new case, Shelby County, Alabama v. Holder, which now may force the issue.

And as you may have seen from the early tweets and articles, it again doesn't look good for the defenders of the VRA. The chief justice, who four years ago held together the Court (save Thomas) to preserve the Act, was sharply skeptical, and Justice Kennedy was ... Justice Kennedy. Below the fold, some key excerpts from the transcript which may reveal where the key justices are on this issue.