Voting Rights after Shelby County v. Holder

Tuesday’s blockbuster decision of the Supreme Court in Shelby County v. Holder dealt with provisions in the Voting Rights Act of 1965 meant to prevent racially discriminatory voting laws from being enacted in states with a history of such practices.  The specific provision under challenge was Section 5, which required covered jurisdictions to seek “preclearance” of new or revised voting rules and procedures with either the U.S. Department of Justice or the federal District court. The Court, in a 5-4 decision, found the formula in Section 4 of the VRA, which determined the jurisdictions subject to federal preclearance of voting laws under Section 5 of the Act, to be unconstitutional. Without a new, constitutional formula, Section 5 is effectively dead.  The formula that was struck down identified jurisdictions subject to preclearance as those with a history of a voting test or device and less than 50 percent voter registration or turnout  as of 1964, 1968 or 1972.  When originally passed, the preclearance provisions were intended to expire after five years, but were reauthorized by Congress four times, most recently in 2006 for twenty-five years.

The majority and minority take starkly different approaches to answering the questions presented in the case. The majority opinion, authored by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Alito and Thomas (concurring), views the preclearance formula as anchored in a past that no longer exists and oblivious to the huge progress made since 1965 in the levels of voting participation and election to public office of  African Americans and other covered minorities.  The majority invited the Congress to write a new formula based on current practices that justifies the extraordinary preclearance procedure.

Associate Justice Ruth Bader Ginsburg, joined by Justices Breyer, Kagan, and Sotomayor, finds compelling the evidence compiled by Congress that, in spite of the dated formula, the covered jurisdictions continue to this day to engage disproportionately in actions that discriminate against minorities.  Consequently, the preclearance provision is essential to prevent the backsliding that was so frequent in the hundred years following the passage of the Fourteenth and Fifteenth Amendments.

This outcome is not surprising given the signals sent previously by the Roberts Court.  Moreover, there is much to be said for a new voting rights law, one that uses contemporary evidence of discrimination and focuses on more recent problems facing minorities and other citizens in exercising their franchise, including hurdles to registration, voter identification requirements, and polling place locations, hours and resources. Such a law might substitute an opt-in provision by providing opportunities for citizens to file administrative complaints with the Justice Department for the current preclearance procedures and more transparent arrangements for reporting of new electoral arrangements and their likely consequences at all levels of government in all fifty states.

Unfortunately, the chances of our deeply dysfunctional Congress enacting new law in this arena, like most others, are remote.  For now, the most powerful tool to realize the objectives of the Civil War Amendments is dead, another victim of the ideological polarization of our two major political parties.  It will be some time before enough consensus develops between the parties to renew or find substitutions for Sections 4 and 5 of the Voting Rights Act.

We will be further addressing the significance of this case on July 1 from 10 AM – 4 PM during a live webcast featuring Voting Rights Act scholars, the parties in the case, experts on Congress, representatives from the civil rights community, and members of the media for a series of discussions on the ruling, its impact on voting rights and election administration, and prospects for future legislative action. Please join us and register for the webcast.