When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to its victims.” South Carolina v. Katzenbach and the statutory regime it upheld have remained good law for decades. That may change very soon. In Shelby County v. Holder, the Justices are again considering the validity of the contemporary versions of VRA provisions South Carolina first challenged decades ago. South Carolina is again participating in the litigation, now as amicus, and is again urging the Court to scrap the statute. This time around, the challenge concedes congressional power to craft the VRA’s regional provisions, in the first instance, but posits that these obligations—-known as “section 5”-—are no longer constitutional today because, as Chief Justice Roberts observed four years ago, “[t]hings have changed in the South.” 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. 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. 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” 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. In other words, section 5 provided a valuable service. It is a service that should not be obscured by South Carolina’s stance in the Shelby County case. It is, moreover, a service that should fall within Congress’s power to provide.
Katz, Ellen D. "South Carolina's "Evolutionary Process"." Colum. L. Rev. Sidebar 113 (2013): 55-65.