On April 27, 2010, Shelby County, Alabama, filed this lawsuit in the District Court of the District of Columbia, challenging the Voting Rights Act's preclearance provision, Section 5. The county sought declaratory and injunctive relief, arguing that the Voting Rights Act was unconstitutional in declaring Shelby County a "covered" jurisdiction and requiring that it obtain approval from the Department of Justice prior to implementing any voting changes.

Following a decision in September of 2010 that the United States could not conduct additional discovery regarding issues of standing and Section 4(a)'s bailout provision, 270 F.R.D. 16 (D.D.C. 2010), the District Court (Judge Bates) granted the Justice Department's motion for summary judgment and granted Shelby County's motion for summary judgement on September 21, 2011. 811 F.Supp.2d 242. The main issue was whether the Act's preclearance requirement constituted a "congruent and proportional" response to a real threat that states would violate minority voting rights. Judge Bates found the Act was indeed a"congruent and proportional remedy" to the 21st century problem of voting discrimination in covered jurisdictions.

On appeal, the D.C. Circuit Court of Appeals likewise held that the preclearance provisions of the Voting Rights Act fell within Congress' authority under the Fifteenth Amendment and that the disparate effect on different jurisdictions was sufficiently related to the targeted problem of voting discrimination to survive judicial review. 679 F.3d 848.

The Supreme Court granted certiorari, 133 S.Ct. 594, and on June 25, 2013, reversed. In a 5-4 opinion written by Chief Justice Roberts, the Court struck down Section 4 of the Voting Rights Act. It found that Section 4's formula, under which states and other jurisdictions needed preclearance, was unconstitutional. Shelby County v. Holder, 570 U.S. 529 (2013). The Court held that Section 4, while appropriate at the time it was passed, no longer provided an accurate list of jurisdictions that discriminated against minority voters. The formula at the time of the Act's passage, named as "covered" jurisdictions those states or political subdivisions that had maintained a test or device (like literacy and knowledge tests, good moral character requirements, etc.) 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. Subsequently, the trigger election was changed to 1972. The Court concluded Section 4 impermissibly violated the "equal sovereignty" of the states. The Court did not express its views on the constitutionality of Section 5, under a different coverage formula. Justice Ginsburg dissented (joined by three others), and Justice Thomas concurred to express his view that Section 5 was unconstitutional.

Without a coverage formula, the Act's preclearance regime is not operative. It remains technically possible for the Congress to pass a new coverage formula.

Jonathan Forman - 06/25/2013


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