This past summer, advocates for voting rights lost a major battle in the fight against disenfranchisement. In July, the Supreme Court overturned Section 4b of the Voting Rights Act of 1965 (VRA). The suit, brought against the federal government by Shelby County, Alabama, argued that the formula used to determine which jurisdictions were required to get preclearance from the Justice Department before changing voting laws was unconstitutional. The 5-4 decision affirmed the plaintiff’s argument that, over the past half-century, the formula devised by Congress for the original passage of the Voting Rights Act has become outdated. The formula found which had been revised twice by Congress (most recently in 1972) requires that any state or political subdivision thereof (county, municipality, etc.) that utilized a voter test in 1964, 1968, or 1972, or whose voter turnout in the presidential elections of those years was below 50 percent, is required to obtain preclearance.
Previously, states with a history of voting rights abuses were required by Section 5 of the VRA to obtain federal permission prior to enacting changes to their voting systems. This preclearance mandate was included in the VRA as a result of the blatant, racially-based voter abuses that several Southern states promoted and implemented. Arguments in Shelby County v. Holder centered on the outdated nature of the formula rather than the constitutionality of preclearance in general. The Court, in this most recent case, chose to rule narrowly on the specific formula utilized by the VRA—as that was the grounds of the case before them—and not the broader constitutional question at hand: whether requiring certain states to obtain preclearance is a violation of the Constitution’s protections of states’ rights, and the guarantee of each state’s equality.
This is not the first case to dispute the constitutionality of the Voting Rights Act. In 1966, almost immediately after the law’s passage, South Carolina brought suit against the federal government in South Carolina v. Katzenbach, arguing against the constitutionality of the VRA under the Tenth Amendment, which protects the rights not named in federal legislation as the domain of the individual states. Chief Justice Earl Warren delivered the opinion of the Court, ruling the VRA constitutional under the enforcement clause of the Fifteenth Amendment. He reasoned that, since the Amendment guaranteed voting protections for people of all races, and the extraordinary circumstances at the time permitted extraordinary legislation. Justice Hugo Black was the lone dissenter in that decision: Black concurred with the Court’s opinion, save for the implementation of Section 5, which he believed violated the principle of state sovereignty and state equality.
More recently, the 2006 case of Northwest Austin Municipal Utility v. Holder found that subsidiary jurisdictions could apply for an exemption from the Section 5 mandates if they showed no history of voter disenfranchisement, even if violations had occurred at the state level. In the opinion of that case, the Court chose to avoid the constitutional argument regarding Section 5’s legality, and instead chose to rule exclusively on the merits of the bailout proposal—a proposal they supported.
Chief Justice John Roberts delivered the opinion of the Court in Shelby County v. Holder. This opinion held that the extraordinary circumstances of voter disenfranchisement of the 1960s were no longer present, and that Congress would not have been able to pass the formula utilized in the modern political era. The Court does not strike down Section 5 in this finding; however, it does neuter it: Without the formula, preclearance cannot be mandated in jurisdictions as there is no law dictating which jurisdictions are to be mandated. This is the crux of the four dissenting justices’ opinion. However, it must be observed that there is nothing but political will—or lack thereof—that stands in the way of passing a new formula with which to enforce Section 5. Thus, the decision of the Court was not the end of preclearance de jure, but for the time being is a de facto elimination of Section 5 preclearance.
The President, disappointed in the Court’s ruling, has pressured Congress to pass a new formula. On January 16, a bill was introduced to the House to establish a new formula along with revisions to Section 3c of the VRA. The proposed formula utilizes more recent evidence of violations, focusing on the fifteen calendar years prior to any proposed changes. Some argue that Republicans should pass the amendment so as to bring suit directly challenging the constitutionality of Section 5.
But Congressional Republicans have little incentive to pass a new formula just so that they may challenge Section 5’s constitutionality. Such a formula would create additional bureaucracy and regulations. In addition, a challenge on Section 5’s constitutionality could take up to four years to reach a decision in the Supreme Court. Permitting the passage of a new formula could restrict states from redistricting, a common tool used by state legislatures to create so-called ‘safe districts,’ or to prevent the passage of Voter ID laws. However, it remains to be seen from the Court whether such actions are prohibited under any of the relevant voter protection laws.
In the end, there is little pressure on Congress to pass the revised formula. Voting rights often appear as a bygone problem for many Americans, especially outside of the South. While violations do occur across the country, many believe that the undue burden caused by Section 5 does not merit its continued enforcement. Not until a new formula is passed, or Congress implements novel preclearance-type restrictions, will we have a new angle on Section 5’s prospects in Court.
Special thanks to Professor Nicholas Stephanopolous of the University of Chicago Law School for providing guidance and insight for this article.