Supreme Court Strikes down Voting Rights Act’s ‘Preclearance’ Formula

In a 5-4 decision, the Supreme Court held Section 4 of the Voting Rights Act of 1965 unconstitutional. Section 4 contained the legislative formula to determine which jurisdictions must get “preclearance” from the federal government to change their voting laws—a procedure mandated by Section 5 of the Act. The formula had not been updated by Congress since 1975. The Court held that the decline in racially discriminatory practices in the last decades—which occurred in large part because of the Voting Rights Act—rendered the formula too outdated to pass constitutional muster.

This ruling has significant implications for states, especially those previously covered by the preclearance requirement, in which lawmakers are contemplating changes to state laws governing elections and redistricting.

In Shelby County v. Holder, an Alabama county covered by the preclearance requirement challenged that Section 5 itself was unconstitutional. It complained that when Congress reauthorized Section 5 in 2006, it lacked the power to do so under the 14th and 15th Amendments, and thus violated the 10th Amendment and Article IV of the U.S. Constitution. Section 5 imposed too great a burden in the county’s view, requiring it to “go hat in hand to Justice Department officialdom to seek approval, or embark on expansive litigation in a remote judicial venue.” The Court had hinted just four years ago in Northwest Austin Municipal Utility District No. 1 v. Holder that Section 5’s burden might be too much, noting that it raised “serious constitutional questions.”

Despite these questions and the county’s pleas, Section 5 survived the Court’s decision in Shelby County, though in letter only. Writing for the Court, Chief Justice Roberts opted to strike down only the formula in Section 4 that determined which jurisdictions would be subject to the preclearance requirements. Though in 1965 Congress could justifiably require states with a then-recent history of voting tests and low voter registration and turnout to obtain preclearance for changes to voting laws, the Court noted, “the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

Without Section 4, Section 5 has no effect, since no states or jurisdictions are subject to the preclearance mandate. And yet by leaving Section 5 in place, the Court left an opening for Congress to enact a formula that “identif[ies] those jurisdictions to be singled out on a basis that makes sense in light of the current conditions.” That said, the Court signaled that Congress will have a difficult time justifying the imposition of preclearance requirements on any jurisdictions. It explained that Section 5 had been appropriate in 1965 because of the “insidious and pervasive evil which had been perpetuated in certain parts of our country.” Absent such circumstances, extreme measures like Section 5 were “not otherwise appropriate,” the Court said.

Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, wrote a passionate dissent. She challenged that “[i]n the Court’s view, the very success of [Section] 5. . . demands its dormancy.” Congress, on the other hand, had recognized “based on [the] voluminous record” it considered when reauthorizing the Act in 2006 “that the scourge of discrimination was not yet extirpated.” Whether Section 5 was still necessary was Congress’s decision to make, Justice Ginsburg explained.

The dissent raised a significant question of how courts scrutinize Congress’s power to enforce the 15th Amendment in voting rights cases, which many thought the decision would answer. In an early case challenging the Voting Rights Act, the Court held that Congress needed only a “rational basis” to pass anti-discrimination voting laws under the 15th Amendment. In 2009, the Court suggested that the much harsher test applicable to the 14th Amendment might apply instead. Shelby County suggests the harsher standard indeed applies, although the Court did not provide any justification. Some predict this understated shift in the level of scrutiny applied may lead to a flurry of challenges to Section 2 of the Voting Rights Act, which applies nationwide to prohibit racial discrimination in voting and was “in no way” affected by the Court’s Shelby County decision.

No matter the impact of this case on future Section 2 suits, the demise of Section 4 has had and will continue to have substantial effects. Mere hours after the Court issued its decision, Texas announced that it would activate its controversial voter ID law and possibly the redistricting maps passed by the Texas legislature. The North Carolina legislature has also indicated its plan to enact a statute, stalled in the state senate awaiting the Supreme Court’s decision, that requires voters to present state-issued photo ID to vote.