On June 25, 2013, the United States Supreme Court held in Shelby County, Alabama v. Holder that the formula used under Section 4 of the Voting Rights Act of 1965 (VRA) to determine which states and localities must receive pre-approval or “preclearance” of their proposed voting changes is unconstitutional. It was a 5-4 decision. The Court’s decision means that many states, counties, and localities will no longer have to seek preclearance from the U.S. Department of Justice before making voting changes. Preclearance stems from the Civil Rights era and was intended to end and reverse voting laws and practices that discriminate against people of color. In 1975 the VRA was amended to address voter discrimination against members of “language minority groups” which was defined to include American Indians and Alaska Natives. Congress has reauthorized the VRA numerous times, most recently in 2006 for a 25-year period.
Many of the jurisdictions covered by the VRA are located in Indian Country. They include Shannon and Todd Counties in South Dakota (the Oglala Sioux and Rosebud Sioux Tribes, respectively), Robeson and Jackson Counties in North Carolina (the Lumbee Tribe and Eastern Band of Cherokee Indians), the entire States of Arizona (21tribes) and Alaska (229 tribes), and other states with Indian tribes including Mississippi, Louisiana, South Carolina, Texas and Alabama.
This lawsuit was brought by Shelby County, Alabama, which is a “covered” jurisdiction under Section 5 of the VRA. Covered jurisdictions cannot make any changes in their voting laws and practices unless they first obtain preclearance from the Department of Justice. Covered jurisdictions are selected for the preclearance based on a formula in Section 4 of the VRA. The formula takes into account past voting rights violations, current violations, and voting rates of people of color, among other factors. Shelby County claimed that both Section 4 and Section 5 were unconstitutional. The Court declared Section 4 unconstitutional.
Writing for the majority, Chief Justice Roberts emphasized that “coverage today is based on decades-old data and eradicated practices.” Roberts wrote that while in the past there was compelling evidence based on racial disparity to justify preclearance and the coverage formula, “there is no longer such a disparity.” Speaking to future attempts by Congress to rewrite Section 4, Roberts said, “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.”
Justice Ginsburg, writing for the dissent, argued back: “The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. … With that belief, and the argument derived from it, history repeats itself.”
The practical result of this ruling is that until Congress reauthorizes Section 4 of the VRA, covered states are free to redesign or alter their voting laws without having to obtain preclearance. Thus, in order to block new voting practices on the grounds of discrimination, private citizens and the United States will now bear the burden of showing the effects of discrimination through suits brought under Section 2 of the Act.
It is uncertain whether this Congress will reauthorize Section 4 of the VRA – initial indications are that the Democratic controlled Senate Judiciary Committee wants to hold hearings and work on a revised formula, while the Republican controlled House Judiciary Committee may be content to let the ruling stand without further legislative action. We will monitor efforts in Congress to revise Section 4 of the Voting Rights Act.
