Constitutional law expert: Conservatives may use new voter ID laws to challenge Voting Rights Act

By Megan Carpentier
Sunday, September 9, 2012 17:32 EDT
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Kenji Yoshino, a professor of constitutional law at New York University, suggested on Melissa Harris Perry’s MSNBC show Sunday that one intentional long-term consequence of states’ efforts to pass voter ID laws may be to eliminate the pre-clearance section of the Voting Rights Act that requires some states and jurisdictions to receive approval from the federal government for any voting law changes because of their history of discrimination against minority groups.

“But the constitutional question is: Does Congress even have the power to enact Section V of the Voting Rights Act?” Yoshino stated. “That could be squarely presented before the court as early as this term,” he added.

Yoshino explained, “We’re talking about the Voting Rights Act of 1965, and under the Voting Rights Act– which is still in effect — under Section V of that act, there certain states have such a negative history of restricting the franchise on the basis of race, that they have to engage in preclearance before they make any change to their election law. Texas and South Carolina [which passed voter ID laws] are two of them.”

Other states currently covered by Section V’s provisions are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as parts of California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota.

“This is a huge boon for voters in states like Texas and South Carolina or any other covered jurisdiction, because it basically places the onus on the state rather than on the disenfranchised individual, or potentially disenfranchised individual, to make their case,” Yoshino said. “So what’s been happening in Ohio and Pennsylvania is that the court has been saying, ‘Oh, well, we’re going to weigh this and basically we’re going to look at the potential for voter fraud, and then we’re going to look at the burden on potentially disenfranchised voters.’ The Voting Rights Act says because of this negative history that this particular state has had, the thumb is heavily on the scale against the state and for the plaintiff,” he added.

“But what’s happening now,” he said, “Is a lot of these states are complaining and saying that the Voting Rights Act itself is unconstitutional.”

Judith Browne Dianis, the co-director of the Advancement Project, elaborated. “It’s because these states are saying, ‘We don’t discriminate any longer, that was a long time ago, so this is unconstitutional as applied to us now.’ So we’re going to see that happening, but we have to understand that the right wing has been setting this up for a long time, to have section five of the voting rights act struck down.

Watch the segment, which first aired on “Melissa Harris Perry” on Sunday, September 9, 2012, below:

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Megan Carpentier
Megan Carpentier is the executive editor of Raw Story. She previously served as an associate editor at Talking Points Memo; the editor of news and politics at Air America; an editor at Jezebel.com; and an associate editor at Wonkette. Her published works include pieces for the Washington Post, the Washington Independent, Ms Magazine, RH Reality Check, the Women's Media Center, On the Issues, the New York Press, Bitch and Women's eNews.
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