Breaking News: DOJ Blocks South Carolina Voter ID Law Under Voting Rights Act; Case Could Be Vehicle to Get Supreme Court to Strike Down Section 5 of VRA Relatively Soon

See these storiesHere is the letter from DOJ. DOJ finds racial disparities in the effect of the photo id law precludes allowing preclearance.  But in light of new evidence submitted by South Carolina, DOJ invites the state to petition for reconsideration.

I have been expecting this decision from DOJ (just as I anticipate that DOJ will reject Texas’s request for preclearance of its new voter id law).  And I anticipate that South Carolina (and Texas) will take  the preclearance decisions to a three judge court in DC, with direct appeal to the U.S. Supreme Court.  I further expect that in this litigation, South Carolina (and Texas) will argue, among other arguments, that Section 5 of the Voting Rights Act is unconstitutional—an issue which has been percolating in the lower courts.

It would further not surprise me for South Carolina (and Texas) to seek expedited review of this question in the DC court as well as in the Supreme Court, on grounds that the state wishes to use its new voter i.d. law in the 2012 election.  That could cause the constitutional question in this case to leapfrog over the other cases raising this issue, giving the Supreme Court a chance to strike down section 5 of the Voting Rights Act as unconsitutional before the 2012 election.

That would make a momentous term even more momentous.

Stay tuned.


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