Going back to the 50s

An intensifying conservative legal assault on the Voting Rights Act could precipitate what many civil rights advocates regard as the nuclear option: a court ruling striking down one of the core elements of the landmark 1965 law guaranteeing African Americans and other minorities access to the ballot box.

At the same time, the view that states should have free rein to change their election laws even in places with a history of Jim Crow seems to be gaining traction within the Republican Party.

“There certainly has been a major change,” said Rick Hasen, a professor of election law at the University of California at Irvine. “Now, you have a whole bunch of credible mainstream state attorneys general and governors taking this view. … That would have been unheard of even five years ago. You would have been accused of being a racist.”

Some of the shift appears to be driven by resentment of what tea party members and others perceive as an overgrown, out-of-control federal government, as well as by widespread concern among Republicans about claims of voter fraud at the polls. Part of the change could also stem from more vigorous enforcement of voting rights laws by President Barack Obama’s Justice Department.

The issue has surfaced in the Republican presidential contest, including at one of the televised debates, and could move to the front burner within weeks as a federal appeals court in Washington prepares to rule on the leading lawsuit against the Voting Rights Act. That case, brought by Shelby County, Ala., is backed by the attorneys general of Alabama, Arizona and Georgia. At least three similar constitutional challenges are pending.

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“There are obviously more elected officials today than there were who are willing to question the wisdom of keeping this provision” of the law, said the American Enterprise Institute’s Edward Blum, a longtime critic. “In 2006, it was very lonely being a voice against reauthorization.”

President George W. Bush didn’t just support renewal of the law — he held a Rose Garden celebration for the bill signing that included the entire Congressional Black Caucus and bipartisan supporters from the Senate and House. “Civil rights leaders from around the country were invited,” Blum said. “It was a big deal.”

A key indication that political consensus is crumbling came during a GOP presidential debate last month in South Carolina.

Fox commentator Juan Williams asked then-candidate Gov. Rick Perry of Texas about the federal role in guaranteeing voting rights. Perry drew raucous cheers from the crowd for promising that he would not allow the federal government to take actions “against the will of the people.”

“Are you suggesting on this Martin Luther King, Jr. Day that the federal government has no business scrutinizing the voting laws of states where minorities were once denied the right to vote?” Williams asked.

“I’m saying that the state of Texas is under assault by the federal government,” Perry replied. “I’m saying also that South Carolina is at war with this federal government and with this administration. If you look at what this Justice Department has done, not only have they taken [South Carolina] to task on voter ID, they’ve also taken them to task on their immigration law. When I’m the president of the United States, the states are going to have substantially more right to take care of their business. And not be forced by the EPA, or by the Justice Department for that matter, to do things that are against the will of the people.”