As the lawyer who argued and lost the Indiana voter ID case in the Supreme Court, I know from personal experience how difficult it will be to use more conventional legal remedies like standard civil lawsuits to tackle these insidious laws. The genius of Section 5 was that it provided for expedited review by the Department of Justice before new election laws could go into effect in states with a long history of attempting to suppress minority voting. States were required to show that the law did not impermissibly harm the voting rights of minorities.
This outcome is particularly indefensible since the Fifteenth Amendment specifically authorized Congress (not the courts) to use its own judgment about the best way in which to grant full voting rights to African-Americans in the South. While the country has made great progress on voting rights since 1965, Congress in 2006 compiled an extensive record showing that in covered states there remained a need for the extraordinary remedy of Section 5 in order to prevent backsliding. Under the Fifteenth Amendment, it had the right to make that judgment, which it did virtually unanimously. The Court should have deferred to Congress on this important question.
Paul M. Smith is Chair of the Appellate & Supreme Court Practice at Jenner & Block LLP. His extensive Supreme Court practice has included numerous cases involving voting rights, as well the First Amendment, gay rights and other issues.