In an essay for SCOTUSblog’s Online Voting Rights Act Symposium, the Cato Institute’s Ilya Shapiro argues persuasively that
Section 5 was a valuable tool in the fight against systemic disenfranchisement, but it now facilitates the very discrimination it was designed to prevent…
[T]he VRA’s success has undermined its continuing viability; courts and legislatures struggle mightily and often fruitlessly to satisfy both Section 5’s race-based mandate and the Fifteenth Amendment’s equal treatment guarantee. These difficulties – constitutional, statutory, and practical – disadvantage candidates and voters, and undermine the VRA’s legacy of vindicating the voting rights of all citizens.
In sum, the Voting Rights Act has served its purpose but is now outmoded and unworkable. Section 5 in particular causes tremendous federalism and equal protection problems, all while enforcing arbitrary standards that conflict with the Fourteenth and Fifteenth Amendments and with Section 2. As Justice Thomas wrote in NAMUDNO, an acknowledgment of Section 5’s unconstitutionality “represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.”
The Court has two excellent opportunities to address these conflicts in the upcoming term, Nix v. Holder and Shelby County v. Holder.