Introduction: From 1870, when the Fifteenth Amendment was ratified, through the early 1960s, African Americans and members of other minority groups were systematically disenfranchised by numerous states throughout the southern United States through the use of poll taxes, literacy tests, and other devices intended to render them ineligible to register to vote or to actually cast votes. In response, the Voting Rights Act of 1965 was enacted to limit discriminatory voting practices. In order to do so, §4(b) of the statute set forth a “coverage formula” to determine if voting districts were imposing prerequisites to voting that had the effect of preventing African Americans, or members of other minority groups, from registering to vote or from voting. Jurisdictions were “covered” by the act if:
As of November 1, 1964 the district used any “test or device,” such as intimidation or intentionally confusing literacy tests, to restrict the ability of eligible voters to register to vote or cast votes
Less than half of the eligible voters were registered to vote on November 1, 1964, or less than half of the eligible voters turned out to vote in the presidential elections of 1964
If a district was “covered” by §4(b), §5 of the statute stipulated that any changes to the district’s voting laws had to be submitted either to the Department of Justice or to the U.S. District Court for the District of Columbia for pre-approval. States could seek to “bailout” from §5’s preclearance requirements if they could prove that the registration of minority voters had increased for a period of ten years preceding the “bailout” request and if the district had not engaged in any discriminatory voting practices The Voting Rights Act of 1965, scheduled to expire after five years, was renewed in 1970, 1975, 1982, and 2006. The Voting Rights Act of 2006 extended the term of §5 of the statute for an additional 25 years. In 2013, when the Supreme Court handed down its decision in Shelby Countyv. Holder, Arizona, Texas, Louisiana, Alabama, Mississippi, Georgia, South Carolina, Virginia, and counties in South Dakota, California, Florida, North Carolina, New York, New Hampshire, and Michigan were “covered” by the “coverage formula” in §4(b) of the statute.
Figure 1: Counties, states, and townships that were covered by Section 4(b) of the Voting Rights Act in 2008. The majority of these states, townships, and counties were covered by the Voting Rights Act when it was declared unconstitutional in 2013.
In Shelby County v. Holder (570 U.S. 2 (2013)), the Supreme Court invalidated the “clearance formula” of the Voting Rights Act of 2006. The majority of the Supreme Court found that the Voting Rights Act of 2006’s clearance formula violated the tenth amendment’s assurance state sovereignty and the principle that the federal government should treat all states equally because it was predicated upon forty-year-old data, which did not reflect current conditions. The following is a sample-brief of this 68-page decision, which includes a concurring and a dissenting opinion. Heading: Shelby County v. Holder, 570 U.S. 2 (2013)
Petitioner: Shelby County, Alabama
Respondent: Eric Holder Jr., Attorney General
Court: Supreme Court of the United States
Facts: Section 1 of the Fifteenth Amendment provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” and §2 of the Fifteenth Amendment authorizes Congress to enforce its prohibitions “by appropriate legislation.” For almost 100 years following ratification of the Fifteenth Amendment, numerous states, especially in the South, devised prerequisites for voter registration and voting, such as literacy and knowledge test, that effectively disenfranchised African Americans and members of other minorities. In response, Congress passed the Voting Rights Act of 1965. Section 5 of the Voting Rights Act of 1965 required jurisdictions with histories of racial and ethnic voter discrimination to submit any proposed changes in their voting procedures to the Department of Justice or the federal District Court for the District of Columbia for preclearance before enactment. Section 4(b) of the Voting Rights Act of 1965 established the formula to determine which states or political subdivisions of states would be subject to §5 preclearance. Section 4(b)’s clearance formula targeted jurisdictions that had suffrage prerequisites that resulted in low rates of voter registration or voter turnout in the presidential election of 1964. When the Voting Rights Act of 1965 was intended to expire after five years; however, it has been continually reauthorized. Most recently, in 2006 the Voting Rights Act was renewed for an additional twenty-five years. While §5 has been expanded since its original enactment to ban any test or device that might diminish the ability of minority voters to elect a candidate of their choice, the clearance formula set forth in §4(b) not been updated since the 1970s. The petitioner, Shelby County, located in Alabama, one of nine states still subject to §5 of the Voting Rights Act, as amended (hereinafter “the Voting Rights Act”) sought a declaratory judgment that §4(b) and §5 of the Voting Rights Act were unconstitutional together with a permanent injunction against their enforcement.
Procedural History: Shelby County sued Attorney General Eric Holder in the United States District Court for the District of Columbia, seeking a declaratory judgment that §4(b) and §5 of the Voting Rights Act were unconstitutional and a permanent injunction against their enforcement. The District Court judge upheld constitutionality of the provisions of the Voting Rights Act on the grounds that Congress had a rational basis for maintaining the existing §4(b) clearance formula. Shelby County appealed to the United States Court of Appeals for the D.C. Circuit. The D.C. Circuit affirmed the trial court’s decision finding that Congress had correctly determined that authorizing individuals to sue under §2 of the Voting Rights Act was not a sufficient remedy to protect them from violations of their Fifteenth Amendment rights. Shelby County petitioned the Supreme Court for a Writ of Certiorari, which the Supreme Court granted.
Legal Issue: Does the clearance formula set forth in §4(b) of the Voting Rights Act and the requirement in §5 that covered jurisdictions submit proposed changes in voting procedure to a Federal District Court or to the Department of Justice violate the United States Constitution?
Decision: Section 4(b) is unconstitutional and, therefore, it cannot subject any states or voting districts within states to §5 of the Voting Rights Act.
Reasoning: (Chief Justice Roberts joined by Justices Scalia, Kennedy, Thomas, and Alito) Chief Justice Roberts began his opinion for the Court by noting that the Tenth Amendment reserves to the states all powers not specifically granted by the U.S. Constitution to the federal government, including the right to “regulate elections” and that it is a fundamental principal that federal legislation should treat all states equally. When the Voting Rights Act was first passed in 1965, there was a “blight of racial discrimination in voting” that supported federal intervention in the regulation of state elections and the disparate treatment of certain states and political subdivisions of states where egregious racial and ethnic disenfranchisement was rampant. However, Chief Justice Roberts maintains that, by the time of the 2006 reauthorization of the Voting Rights Act, the Act had been so successful that “blatantly discriminatory evasions of federal [election] decrees [were] rare.” The original justification for usurping states’ sovereignty with respect to the conduct of elections and treating different states differently had ceased to exist by 2006. Voting by African Americans and other minorities had reached “parity” with that of white voters. The forty-year-old clearance formula was predicated upon discriminatory practices that the Voting Rights Act had “eradicated.” Any test for legislation that impinges on federalism or the equal treatment of states must reflect current conditions. Section 4(b) can therefore no longer be used to subject any state or political subdivision of any state to the preclearance required by §5. Chief Justice Roberts finds it unnecessary to reach the issue of whether §5 is also unconstitutional because it cannot be applied if §4(b) is unconstitutional.
Concurring Opinion: (J. Thomas) Justice Thomas contends that the arguments put forth by Chief Justice Roberts’ in his opinion for the court “compellingly demonstrates” that §5 of the Voting Rights Act should also be declared unconstitutional. Chief Justice Roberts’ opinion makes clear that in 2006 Congress expanded the statute’s already significant burden on states to include prohibitions on any alterations related to suffrage “with any discriminatory purpose” or which might impede the ability of African Americans or members of other minorities “to elect their preferred candidate of choice” even though “[t]he extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment” had ceased to exist. In the absence of continued “flagrant” and “widespread” voting discrimination, the “extraordinary” burdens that §5 places on states violates their sovereignty.
Dissenting Opinion: (J. Ginsburg joined by J. Sotomayor, J. Kagan, and J. Breyer) According to Justice Ginsburg, while the Voting Rights Act has successfully eliminated the types of “first generation” discriminatory barriers to voter registration and voting that it was initially intended to combat, “second generation” impediments to minority voting efficacy, such as gerrymandering and switching from district to at-large elections, which dilute the power of minority votes, have replaced them. Accordingly, Justice Ginsburg believes that in the absence of the preclearance requirements of §5 of the Voting Rights Act, states will continue to devise means of diluting the votes of African Americans and other minorities. Requiring victims of voter discrimination to resort to litigation under §2 of the Act in order to defend their Fifteenth Amendment voting rights places an unfair burden on them because such litigation is costly and time-consuming, and, moreover, if a court bans a specific discriminatory practice, a new, slightly different one with the same effect will take its place. Noting that the Fifteenth Amendment includes an explicit grant of authority to Congress to enact appropriate legislation to enforce it, Justice Ginsburg argues that congressional voting-rights legislation must be given deference by the courts and thus need only have a rational basis underlying it. She notes that both Houses of Congress conducted extensive hearings and amassed a substantial legislative record prior to passage of the Voting Rights Act of 2006. She finds this sufficient to support a judicial conclusion that Congress had a rational basis reauthorizing §4(b) of the Voting Rights Act in 2006, which the Supreme Court must respect.