Shelby County v. Holder, 570 U.S. 529 (2013), is a landmark decision[1] of the Supreme Court of the United States regarding the constitutionality of two provisions of the Voting Rights Act of 1965: Section 5, which requires certain states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices; and subsection (b) of Section 4, which contains the coverage formula that determines which jurisdictions are subject to preclearance based on their histories of racial discrimination in voting.[2][3]
On June 25, 2013, the Court ruled by a 5 to 4 vote that Section 4(b) was unconstitutional because the coverage formula was based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states.[2][3] The Court did not strike down Section 5, but without Section 4(b), no jurisdiction will be subject to Section 5 preclearance unless Congress enacts a new coverage formula.[4]
The ruling has made it easier for state officials to engage in voter suppression.[5][6] Research shows that preclearance led to increases in minority congressional representation and minority voter turnout.[7][8][9][10] Five years after the ruling, nearly 1,000 U.S. polling places had closed, many of them in predominantly African-American counties. A 2011 study in the American Political Science Review showed that changing and reducing voting locations can reduce voter turnout.[6] There were also cuts to early voting, purges of voter rolls, and imposition of strict voter ID laws.[11][12]
Congress enacted the Voting Rights Act of 1965 to address entrenched racial discrimination in voting, "an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution".[2] Section 5 of the Act contains a "preclearance" requirement that requires certain states and local governments to obtain a determination by the United States Attorney General or a three-judge panel of the United States District Court for the District of Columbia that changes to their voting laws or practices do not "deny or abridge the right to vote on account of race, color, or membership in a language minority group" before those changes may be enforced.[13] Section 4(b) contains the coverage formula that determines which states and local governments are subject to preclearance under Section 5. The formula covers jurisdictions that, as of November 1964, November 1968, or November 1972, maintained a prohibited "test or device" as a condition of registering to vote or voting and had a voting-age population of which less than half either was registered to vote or actually voted in that year's presidential election.[14] Section 4(a) allows covered jurisdictions that have made sufficient progress in ending discriminatory voting practices to "bail out" of the preclearance requirement.[14]
The Supreme Court upheld the preclearance requirement and coverage formula as constitutional enforcement legislation under Section 2 of the Fifteenth Amendment in South Carolina v. Katzenbach (1966).[15] The preclearance requirement initially was set to expire five years after enactment, but amendments to the Act in 1970, 1975, and 1982 reauthorized Section 5; the 1970 and 1975 amendments also updated the coverage formula.[2][16]: 571 The Supreme Court upheld these reauthorizations as constitutional in Georgia v. United States (1973),[17] City of Rome v. United States (1980),[18] and Lopez v. Monterey County (1999).[2]: 5 [19] In 2006, Congress reauthorized Section 5 for an additional 25 years, but did not change the coverage formula from the 1975 version.[14]
Shortly after the 2006 reauthorization, a Texas utility district sought to bail out from Section 5 preclearance and, in the alternative, challenged the constitutionality of Section 5. The Supreme Court ruled unanimously in Northwest Austin Municipal Utility District No. 1 v. Holder that government entities that did not register voters, such as the utility district, had the right to file suit to bail out of coverage. Because this decision resolved the issue, the Court invoked constitutional avoidance and declined to address the constitutionality of Section 5. Justice Clarence Thomas dissented from this portion of the opinion and would have declared Section 5 unconstitutional.[20]
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Shelby County, in the covered jurisdiction of Alabama, sued the U.S. Attorney General in the U.S. District Court for D.C. in Washington, D.C., seeking a declaratory judgment that sections 4(b) and 5 are facially unconstitutional and a permanent injunction against their enforcement. On September 21, 2011, Judge John D. Bates upheld the provisions, finding that the evidence before Congress in 2006 was sufficient to justify reauthorizing Section 5 and continuing Section 4(b)'s coverage formula.[22]
Arguing before Bates were Kristen Clarke, who argued that it was reasonable for Congress to "stay the course" in renewing Section 5 of the Voting Rights Act in order to root out discrimination, and Bert Rein, a lawyer for Shelby County, who argued that the environment in the country was "totally different" when Section 5 was first enacted.
On May 18, 2012, the U.S. Court of Appeals for the D.C. Circuit affirmed the District Court's decision upholding the constitutionality of Section 4(b) and Section 5. After surveying the evidence in the Congressional record associated with the 2006 reauthorization of Section 5, the appellate court accepted Congress's conclusion that Section 2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, that Section 5 was therefore still justified, and that the coverage formula continued to pass constitutional muster.[23]
The Supreme Court granted certiorari to hear the case on the limited question of "whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution."[24] The Supreme Court heard oral arguments on February 27, 2013.[25] Media coverage of the justices' comments during oral arguments portrayed the Court as appearing likely to hold Section 5 or Section 4(b) unconstitutional.[26][27] Justice Antonin Scalia drew criticism from civil rights leaders for expressing his belief during oral argument that Congress reauthorized Section 5 not because the legislation was necessary, but because it constituted a "racial entitlement" that Congress was unlikely to end.[26][27][28]
A coalition of four states provided an amicus brief[29] to the Supreme Court expressing support for Section 5 and noting that the preclearance provision did not impose a burden on them. The coalition was led by New York[30] and included Mississippi, North Carolina and California.
The Supreme Court struck down Section 4(b) as unconstitutional in a June 25, 2013 ruling.[2][31] The majority opinion was delivered by Chief Justice John Roberts, joined by Justices Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.[32][33][34] The Court held that Section 4(b) exceeded Congress' power to enforce the Fourteenth and Fifteenth Amendments, reasoning that the coverage formula conflicts with the constitutional principles of federalism and "equal sovereignty of the states" because the disparate treatment of the states is "based on 40-year-old facts having no logical relationship to the present day" and thus is not responsive to current needs.[2][3] The Court held that Congress cannot subject a state to preclearance based simply on past discrimination. It noted that since the coverage formula was last modified in 1975, the 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".[2][35][36] The Court declared that the Fifteenth Amendment "commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future."[37]
Roberts wrote that the Act was immensely successful "at redressing racial discrimination and integrating the voting process" and noted that the U.S. has made great progress thanks to the Act.[32] But he added: "If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula."[32] According to the Court, "Regardless of how to look at the record no one can fairly say that it shows anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation."[37][38]
The Court did not subject Section 4(b) to the "congruence and proportionality" standard of review or address whether that standard is the appropriate measure to use when determining the constitutionality of legislation passed pursuant to Section 2 of the Fifteenth Amendment.[39] The Court also noted the federalism concerns the Section 5 preclearance requirement raised, but did not reach the issue of whether Section 5 is constitutional. However, because the Section 5 preclearance requirement applies only to jurisdictions covered by the Section 4(b) coverage formula, the decision rendered Section 5 inoperable unless Congress enacts a new coverage formula.[4][31][40]
Thomas wrote a concurring opinion expressing his view that Section 5 is also unconstitutional for the same reasons the Court held Section 4(b) unconstitutional.[2][41]
Justice Ruth Bader Ginsburg wrote a dissenting opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. The dissent would have held that Congress had sufficient evidence before it to determine that the coverage formula remained responsive to current needs. The dissent acknowledged that discrimination in voting has decreased in the covered jurisdictions since the Voting Rights Act's enactment, but it attributed much of that decrease to the Act itself, noting that "[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."[2][3][37]
The opinion was controversial, prompting heavy media coverage of reactions from political leaders, activists, and the legal community.
President Barack Obama expressed deep disappointment with the decision and called on Congress "to pass legislation to ensure every American has equal access to the polls".[42][43] Attorney General Eric Holder also expressed disappointment, and pledged that the Department of Justice "will not hesitate to take swift enforcement action—using every legal tool that remains available to us—against any jurisdiction that seeks to take advantage of the Supreme Court's ruling by hindering eligible citizens' full and free exercise of the franchise".[44][45] On July 25, 2013, Holder announced that the Department of Justice would ask a federal court to subject the formerly covered state of Texas to preclearance under the "bail in" provision in Section 3 of the Voting Rights Act, which was unaffected by the Court's decision.[46][47]
When asked whether a polarized Congress could agree on a new coverage formula, Speaker John Boehner acknowledged the Voting Rights Act's importance over the previous 40 years and said he was reviewing the decision and trying to determine the next steps. House Majority Leader Eric Cantor expressed hope that Congress would "put politics aside" and determine how to ensure that voting rights remain protected.[48]
Representative John Lewis, a leader in the civil rights movement who was present when President Lyndon B. Johnson signed the Voting Rights Act into law, said that the decision disregarded the country's history of voting discrimination and that he feared the decision would allow local election officials "to go back to another period".[49][50] He added: "the purpose of the Voting Rights Act is not to increase the numbers of minority voters or elected officials. That is a byproduct of its effectiveness. The purpose of the act is to stop discriminatory practices from becoming law. There are more black elected officials in Mississippi today not because attempts to discriminate against voters ceased but because the Voting Rights Act kept those attempts from becoming law."[51]
House Judiciary Committee chair Bob Goodlatte said the committee would review new voting data but that he was unsure whether it would take any action in response to the decision.[52][53] On July 18, 2013, the House Judiciary Subcommittee on the Constitution and Civil Justice held a hearing to discuss how the House should respond to the ruling.[54]
Senate Majority Leader Harry Reid said that Democrats were concerned with the ruling in light of "Republicans doing everything they could to suppress voting" in the 2012 elections, and that the Senate would act to address the decision.[55] Senator Bob Corker said that he "cannot imagine" Congress ever agreeing on the terms of a new coverage formula.[48][56] On July 17, 2013, the Senate Judiciary Committee began to hold hearings on how to respond to the decision.[53][57]
Republican Senator Ted Cruz supported the ruling: "Today, the Supreme Court recognized the enormous progress made toward voting equality in the United States since the Voting Rights Act was passed in 1965. The Court rightly decided that the statutory standard used decades ago to subject democratically-elected state legislatures to second-guessing by unelected federal bureaucrats no longer survives constitutional scrutiny."