"THE SOUTH RISES AGAIN": SCOTUS REJECTS SECTION 4, VOTING RIGHTS ACT OF 1965

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The case is Shelby County, Alabama v. Holder, Attorney General, Et Al., 570 U.S.___(2013).

The Supreme Court of the United States (SCOTUS) has rejected a key part of the Voting Rights Act of 1965, i.e. Section 4, the "formula" that is used to determine which jurisdictions are required to secure advance clearance from the U.S. Department of Justice prior to making changes to voting practices.

In a 5-4 decision, SCOTUS said the formula of Section 4 is unconstitutional given advances in voting rights in the covered states. Chief Justice John G. Roberts Jr. wrote the majority opinion.

The current formula requires preclearance for changes to voting practices by nine states, mostly in the South, and parts of seven others. If Congress wants to single out certain states for scrutiny, Roberts said, they must be chosen "on a basis that makes sense in light of current conditions."

"Coverage today is based on decades-old data and eradicated practices," Roberts said. "The formula captures states by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. ... And voter registration and turnout numbers in the covered states have risen dramatically in the years since."

Indeed, Roberts said, by 2009 the racial gap in voter registration and turnout was lower in states originally subjected to preclearance requirements than it was nationwide.

SHELBY COUNTY ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL., Supreme Court of the United States, Certiorari to the United States Court of Appeals for the District of Columbia Circuit, No. 12-96, Argued February 27, 2013 - Decided June 25, 2013, 570 U.S.___(2013).

The Voting Rights Act of 1965 was enacted 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.” South Carolina v. Katzenbach, 383 U. S. 301. Section 2 of the Act, which bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color,” 42 U. S. C. §1973(a), applies nationwide, is permanent, and is not at issue in this case. Other sections apply only to some parts of the country.

Section 4 of the Act provides the “coverage formula,” defining the “covered jurisdictions” as States or political subdivisions that maintained tests or devices as prerequisites to voting, and had low voter registration or turnout, in the 1960s and early 1970s. §1973b(b).

In those covered jurisdictions, §5 of the Act provides that no change in voting procedures can take effect until approved by specified federal authorities in Washington, D. C. §1973c(a). Such approval is known as “preclearance.”
  

The coverage formula and preclearance requirement were initially set to expire after five years, but the Act has been reauthorized several times. In 2006, the Act was reauthorized for an additional 25 years, but the coverage formula was not changed. Coverage still turned on whether a jurisdiction had a voting test in the 1960s or 1970s, and had low voter registration or turnout at that time. Shortly after the 2006 reauthorization, a Texas utility district sought to bail out from the Act’s coverage and, in the alternative, challenged the Act’s constitutionality.

 

This Court resolved the challenge on statutory grounds, but expressed serious doubts about the Act’s continued constitutionality. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193.

  

Petitioner Shelby County, in the covered jurisdiction of Alabama, sued the Attorney General in Federal District Court in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 are facially unconstitutional, as well as a permanent injunction against their enforcement.

 

The District Court upheld the Act, finding that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing §4(b)’s coverage formula.

 

The D. C. Circuit affirmed.

 

After surveying the evidence in the record, that court accepted Congress’s conclusion that §2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, that §5 was therefore still necessary, and that the coverage formula continued to pass constitutional muster.

  

Held: Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. Pp. 9–25.

 

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