Ellen Katz has written this important new article for Columbia Law Review’s Sidebar, the first in a series of essays on election law issues in the 2012 election.  From the introduction:

Undeniably, things have changed. Opportunities for minority political participation in places like South Carolina have evolved since Congress first enacted the VRA. Supporters of the VRA readily acknowledge as much but argue that this evolution is less developed, more fragile, and more dependent on section 5’s continued operation than South Carolina and others siding with the petitioners in Shelby County maintain.⁵ The pending case accordingly presents the Court with competing narratives, one of a problem solved and, hence, a statute that has run its course, and another depicting a vulnerable work in progress that requires the sustained attention the VRA provides.

There is, nevertheless, an additional narrative the Justices should consider when they evaluate how far places subject to the VRA’s regional provisions have evolved. This narrative posits that section 5 is far from obsolete and operates not only as a restraint on the ill-intentioned, but also as an affirmative tool of governance. On this account, one of the VRA’s most critical, albeit least appreciated, functions is the way in which it helps public officials navigate complex contemporary questions concerning equality of opportunity in the political process.⁶
A good example of the VRA’s role in this regard is found in the recent dispute over voter identification (ID) in South Carolina. The “evolutionary process”⁷ through which voter ID came to be approved in South Carolina shows section 5 operating not only as a constraint, but also as a constructive mechanism for dispute resolution. In this capacity, section 5 helped produce a voter ID measure which, as one reviewing judge explained, “accomplishes South Carolina’s important objectives, while protecting every individual’s right to vote and . . . addressing the significant concerns” about the measure’s impact on minority voters.⁸