Supreme Court Invalidates Voting Rights Act Formula: Arizona and Other Covered Jurisdictions Are No Longer Subject to the Preclearance Requirement

The United States Supreme Court (the Court) struck down part of the Voting Rights Act (the Act) this week, freeing nine states, including Arizona, and dozens of counties from federal oversight of their voting laws.

Congress enacted the Act in 1965 to reduce racial discrimination in voting. Section 5 of the Act requires that certain “covered jurisdictions” obtain preclearance from the Department of Justice before implementing changes to their voting procedures.

Covered jurisdictions are identified by a “coverage formula” contained in Section 4 of the Act. The most recent iteration of this formula was enacted in 1975. That amendment extended Section 5 coverage to jurisdictions that, as of 1972, used a discriminatory “test or device” as a prerequisite to voting and had low voter registration or turnout. The formula also extended to jurisdictions that used English-only voting materials where more than five percent of individuals spoke a language other than English. It is for this reason that Arizona became a “covered jurisdiction.” Despite subsequent reauthorization of the Act, most recently in 2006, Congress has not amended the Section 4 coverage formula since 1975.

In Shelby County v. Holder, the Court ruled in a 5-4 decision that the coverage formula in Section 4 is unconstitutional. The Court characterized Section 5’s preclearance requirement as “an extraordinary departure from the traditional course of relations between the States and Federal Government.” In striking down the coverage formula, the Court explained that the “current burdens” of Section 5 must be justified by “current needs.” The Court observed that, since Congress last adjusted the coverage formula, voting tests have been abolished, racial disparities in voter registration and turnout have diminished and minorities have attained political office in record numbers. Yet, Congress has not updated the coverage formula to reflect what the Court believed were the changing circumstances in voting.

The Court did not pass judgment on the constitutionality of the Section 5 preclearance requirement. Instead, the Court expressly stated Congress could draft a new coverage formula based on current conditions. However, unless and until Congress does so, jurisdictions previously subject to Section 5, including Arizona, will be able to change their voting procedures without first obtaining preclearance from the Department of Justice.