Supreme Court Holds that Section 4(b) of the Voting Rights Act is Unconstitutional: Shelby County v. Holder

On June 25, 2013, the Supreme Court of the United States decided Shelby County v. Holder, No. 12-96, holding that the formula of Section 4(b) of the Voting Rights Act, which selects the states and political subdivisions whose laws relating to voting must be precleared by the federal government before taking effect, is unconstitutional in light of current conditions and can no longer be used.

Congress enacted the Voting Rights Act in 1965. Section 2 of the Act applies to all states and prohibits them from adopting any "standard, practice, or procedure" that "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." Both governments and individuals can sue to enforce Section 2. Section 2 was not at issue in the case and remains in force.

Section 4 of the Act applies to certain parts of the country, known as "covered jurisdictions," that satisfy a "coverage formula" set forth in Section 4(b). As originally enacted, the coverage formula included jurisdictions that maintained a test or device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 presidential election. Section 4 bans all tests or devices, such as literacy and knowledge tests, moral-character requirements, and the need for vouchers from registered voters.

Section 5 of the Act provides that no covered jurisdiction can change its voting procedures without approval from either the United States Attorney General or a three-judge federal court in Washington D.C. This is known as the "preclearance" requirement, and it requires a covered jurisdiction to prove that any change in voting procedures has neither "the purpose [nor] the effect of denying or abridging the right to vote on account of race or color."

Sections 4 and 5 were originally set to expire after five years. In 1970, Congress reauthorized the Act for another five years, and extended the coverage formula in Section 4 to include additional jurisdictions. Congress also extended Section 4's ban on tests and devices nationwide. In 1975, Congress reauthorized the Act for another seven years, and extended the coverage of Section 4 to additional jurisdictions. In 1982, Congress reauthorized the Act for 25 years; the coverage formula in Section 4 stayed the same. The Supreme Court upheld each of the reauthorizations against constitutional challenge.

In 2006, Congress reauthorized the Act for another 25 years, again without changing the coverage formula under Section 4. Congress also amended Section 5 to prohibit more conduct than the Act previously covered. A Texas utility district challenged the constitutionality of the Act in Northwest Austin Municipal Utility Dist. No. One v. Holder, 557 U.S. 193 (2009). The Court did not decide the constitutional issue in that case, but expressed doubts about the Act's continued constitutionality, questioning whether the problems that Section 5 of the Act was meant to address were still concentrated in the covered jurisdictions that were subject to preclearance.

This case began when Shelby County, Alabama, sued the Attorney General, seeking a declaratory judgment that Sections 4(b) and 5 of the Act are facially unconstitutional, and a permanent injunction barring their enforcement. The District Court ruled against the county and upheld the Act, and the D.C. Circuit affirmed, holding that Section 5 preclearance was still necessary because litigation under Section 2 remained inadequate to protect minorities' rights in covered jurisdictions, and that the coverage formula of Section 4(b) remained valid because it singled out the jurisdictions in which discrimination is concentrated.

The Supreme Court reversed the D.C. Circuit. The Court began with the principles of federalism that states have "broad autonomy in structuring their governments and pursuing legislative objectives," specifically the power to regulate elections, and that states are equal sovereigns. The Court remarked that the Voting Rights Act "sharply departs from these basic principles" by singling out nine states and several counties in other states and suspending all changes to their election laws until those jurisdictions get permission from the federal government "to implement laws that they would otherwise have the right to enact and execute on their own." The Court stated that this degree of federal involvement in state election law was justified in 1966, when racial discrimination in voting was rampant in parts of the country and African-Americans registered to vote in certain parts of the country at rates far lower than whites. And the Court stated that the coverage formula in Section 4(b) made sense in 1966 because it extended coverage to the jurisdictions where evidence of actual voting discrimination was most prevalent.

"Nearly 50 years later," the Court stated, "things have changed dramatically." Voter registration rates in covered jurisdictions now approach parity between minorities and non-minorities, blatantly discriminatory voting practices are rare, and "minority candidates hold office at unprecedented levels." And the tests and devices that blocked voting in 1966 have been forbidden nationwide by other parts of the Voting Rights Act. Yet Congress has not narrowed the scope of the coverage formula in Section 4(b) to respond to the changed conditions. "Coverage today is based on decades-old data and eradicated practices," the Court stated. The formula is based on literacy tests and low voter registration in the 1960s, despite the fact that such tests have been banned nationwide for more than 40 years and minority voter registration rates have increased dramatically.

The Court rejected the government's argument that the Section 4 formula is valid because Congress identified the jurisdictions to be covered, and then came up with criteria to describe them. The Court stated that such a justification would require no logical relationship between the criteria in the formula and the reason for coverage, it would only be necessary that the formula capture the jurisdictions that Congress wanted to single out. The Court also rejected the government's argument that the Section 4(b) formula remains necessary as long as there is any discrimination in the covered jurisdictions. The problem, according to the Court, is that Congress "ke[pt] the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs." The Court emphasized that if Congress wants to single out states for different treatment, it must do so based on current conditions, not on past conditions. But, the Court stated, "[i]f Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula" because it is based largely on 40-year-old data.

The Court held that Section 4(b) of the Voting Rights Act is unconstitutional, and that its formula "can no longer be used as a basis for subjecting jurisdictions to preclearance." The Court emphasized that its decision had no effect on the nationwide ban on racial discrimination in voting under Section 2, and that the Court issued no holding with respect to the Section 5 preclearance requirement itself. The Court concluded: "Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions."

Chief Justice Roberts delivered the opinion of the Court, in which Justices Scalia, Kennedy, Thomas, and Alito joined. Justice Thomas filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.

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