MELISSA BLOCK, HOST:
As we mentioned, the South Carolina case is being heard by a federal court here in Washington, D.C. That's because South Carolina is one of the states covered by a special provision of the Voting Rights Act of 1965. The provision, known as Section 5, applies to places that have a history of voter discrimination; the large majority of them, in the South. For more on Section 5 and how it's played out recently, we've called on Nate Persily, professor of law at Columbia University. Professor Persily, welcome to the program.
NATE PERSILY: Thanks for having me.
BLOCK: And why don't you lay out, a bit, what Section 5 of the Voting Rights Act does?
PERSILY: Well, there are two important sections to the Voting Rights Act: Section 2, which applies to the whole country; and then Section 5, which - as you said - principally applies in the South, but also applies to some locations outside the South. And if you are covered under the Voting Rights Act, you - as a jurisdiction - have to get permission from the federal government for all of your voting-related laws. Whether it's moving a polling place or passing a redistricting plan or a voter ID law, you have to get permission from the Justice Department, or the federal court in D.C.
BLOCK: That permission you're talking about, they call pre-clearance.
PERSILY: That's right.
BLOCK: And what were the criteria to determine which states would fall under this provision for pre-clearance?
PERSILY: Originally, the Voting Rights Act was intended to target the South. But the Congress didn't say, it's just going to target the South; and they were worried about what would happen, if they did say that. So instead, they developed a neutral-coverage formula. And the formula is: In 1964, were you a jurisdiction that had something like a literacy test, or other barrier to voting; and did you have voter turnout under 50 percent? And that provision then captured most of the South. It didn't capture, for example, Texas and Arkansas or Florida, but it did capture most of the remaining South - so places like Louisiana, Mississippi, Alabama, Georgia, South Carolina.
Later on, they amended the Voting Rights Act to increase the coverage formula, to include places that had large non-English speaking populations and distributed ballot materials only in English. So because of that amendment, Texas was covered; parts of California, Florida and New York were also covered, as well as Arizona and Alaska. Then there are some other places that for one reason or another, got pulled in under either one of those coverage formulas. And it's sort of hard to figure out why - townships in Michigan and South Dakota; townships in New Hampshire as well.
BLOCK: Now, many of the Southern states say that this provision - where they have to go and get pre-clearance, if they want to change their voting laws - is unfair; that it's an overreach, discrimination. They say it was long ago, and this is basically a scarlet letter that they can't shake. What would it take for them to be exempted now; to not have to fall into this provision?
PERSILY: There is a provision in the Voting Rights Act - called the bailout provision - which allows jurisdictions, if they have a sort of 10-year good record, to bail out from under coverage. We've seen an uptick in the number of jurisdictions that have bailed out. But for the most part, it's counties and small localities that have bailed out. States have not bailed out since the Voting Rights Act was reauthorized in 1982.
BLOCK: Do you see any signs that the Supreme Court could move to strike down Section 5, in the future?
PERSILY: Not only do I see signs of that, I think the likelihood is that they will. There was a case called the Northwest Austin Municipal Utility District, where the court - in a unanimous opinion, really - basically said that the Voting Rights Act is irrational because it is not based on current realities of the dangers to minority voting rights.
And so now, we have several cases working their way through the courts - from Alabama, North Carolina and potentially, from Florida and Texas - where the jurisdictions are saying that this violates the Constitution. The Congress has exceeded its powers in enacting Section 5 of the Voting Rights Act. And I think all signs are that the Roberts court will strike it down. The question is, how broad and loud an opinion it's going to be. The remainder of the Voting Rights Act will still be alive after that. But Section 5, I think, is living on borrowed time.
BLOCK: Nate Persily is a law professor at Columbia. He specializes in voting and election law. Professor Persily, thanks so much.
PERSILY: Thanks for having me.
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