Arguments began in the US District Court for the District of Columbia [official website] on Monday in a lawsuit brought by Texas against the US government regarding a voter identification law that was blocked by the Department of Justice (DOJ) [official website] under the Voting Rights Act of 1965 (VRA) [materials]. State of Texas v. Holder concerns a 2011 Texas law [SB 14 materials] requiring voters to present photo identification at the polls, blocked in March by the DOJ [JURIST report] on the grounds that the law will disproportionately affect minority voters. Existing Texas law requires voters to show a non-photo voter registration card [Reuters report] or an acceptable alternative, such as a driver's license or a utility bill. The Section 5 [DOJ backgrounder] "preclearance" rules of the VRA require covered jurisdictions to clear changes in voting districts, polling places and other electoral processes with the DOJ or federal courts. Section 5 relies heavily on patterns of past discrimination to determine which state, county and local governments must obtain preclearance for election changes. The VRA was enacted to put an end to the systematic disenfranchisement of minority voters that ran rampant in Southern districts in the 1960s. The Texas lawsuit, which has 25 hours of argument scheduled over five days, is one of dozens of VRA challenges over the past two years, each largely aimed not just at defending specific voting changes but also at getting the Supreme Court to strike down the VRA, especially Section 5. According to a public DOJ list [materials], currently nine whole states, including Texas, and many individual counties and municipalities are Section 5 Covered Jurisdictions. The Senate last voted extend the VRA [NYT report] in 2006 by an overwhelming 98-0 vote.
There are now more than 30 US states [NCSL backgrounder] that require voters to present some form of ID at the polls, including 17 states that have passed laws that require a photo ID. Last month Chris Elmendorf of the University of California, Davis School of Law, wrote [JURIST op-ed] that recent statistical findings may contribute to courts declaring Section 5 of the VRA to be unconstitutional, while simultaneously strengthening the provisions of Section 2. Unlike the preclearance rules of Section 5, Section 2 nationally prohibits election laws that "result" in minority voters having "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." In May Elmendorf wrote [JURIST op-ed] that the "purpose" rather than the "effects" prong of Section 5 of the Voting Rights Act may offer a better basis to challenge recent state regulations of the voting process. The DOJ relied on the "effects" prong of Section 5, which requires that a new law not have a retrogressive effect on racial minorities' political participation, in denying preclearance to Texas in March, and to South Carolina [JURIST report] in December.