Caseflicks

Supreme Court of the United States • 2013

Shelby County v. Holder

133 S. Ct. 2612 | 186 L. Ed. 2d 651 | 2013 U.S. LEXIS 4917 | 570 U.S. 529 | 81 U.S.L.W. 4572 | 24 Fla. L. Weekly Fed. S 407

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Takeaway

In short, Shelby County invalidated the Voting Rights Act’s old coverage formula because Congress had not tied it to current conditions, disabling ordinary §5 preclearance while leaving §2’s nationwide ban on voting discrimination in force.

Background

Congress enacted the Voting Rights Act of 1965 to combat entrenched racial discrimination in voting. Section 2 permanently prohibits voting practices that deny or abridge voting rights on account of race or color nationwide. Sections 4(b) and 5 supplied a more stringent, temporary remedy: §4(b) identified certain States and localities using their use of voting tests and low registration or turnout in the 1960s and early 1970s, and §5 required those covered jurisdictions to obtain federal “preclearance” before implementing any voting-law change.

Congress repeatedly extended the Act and, in 2006, reauthorized §5 for another 25 years without revising §4(b)’s coverage formula. Shelby County, Alabama, a jurisdiction covered because Alabama was covered, sued the Attorney General in the District Court for the District of Columbia. It sought a declaration that §§4(b) and 5 were facially unconstitutional and an injunction against their enforcement.

The District Court upheld both provisions, concluding that Congress’s extensive 2006 record supported continued preclearance and the existing coverage formula. The D.C. Circuit affirmed. It found that §2 litigation remained an inadequate substitute for §5 and held, although it called the issue close, that the formula continued to identify jurisdictions where voting discrimination was concentrated. The Supreme Court reversed.

Issues

Issue #1

Whether §4(b)’s coverage formula, which subjected selected jurisdictions to §5 preclearance based on voting conditions in the 1960s and early 1970s, remained constitutional in 2013.

Holding

No. Section 4(b) was unconstitutional because its disparate geographic coverage was not justified by current conditions and therefore could no longer trigger §5 preclearance.

Reasoning

The Court began with the exceptional nature of the preclearance regime. States ordinarily may enact and administer their own election laws, subject to later judicial review under federal law. Section 5 instead required covered States and localities to obtain advance federal permission for every voting change, while §4(b) imposed that burden on only some States. This sharply departed from federalism and from the traditional principle that States enjoy equal sovereignty.

Those departures were constitutional when the Act was first upheld in South Carolina v. Katzenbach. In 1965, the formula connected preclearance to contemporary evidence of pervasive discrimination: jurisdictions used devices such as literacy tests and also had depressed registration or turnout. The formula therefore identified both the discriminatory means and their disenfranchising effects, making it rational in practice and theory at that time.

The Court held that the constitutional justification had to be assessed in light of present conditions. The Act imposed current burdens and thus required current needs to support it. By 2013, literacy tests and similar devices had been prohibited nationwide for decades, racial gaps in registration and turnout in the originally covered States had dramatically narrowed or disappeared, and minority officeholding had greatly increased. These developments reflected the Voting Rights Act’s considerable success, but also undermined reliance on the facts used to choose covered jurisdictions decades earlier.

Congress’s 2006 decision to preserve the same formula did not cure the problem. Section 4(b) still turned on whether a jurisdiction used a test or device and had low registration or turnout in 1964, 1968, or 1972. Those historical criteria no longer logically identified the States and localities that allegedly required the extraordinary remedy of preclearance. Congress could not continue to divide States on the basis of a historical record alone when current statistics told a materially different story.

The Court rejected the Government’s contention that Congress could effectively select the jurisdictions it wanted to cover and then retain a formula that happened to capture them. Katzenbach had sustained the original formula because its criteria were relevant to the problem of voting discrimination, not because Congress could reverse-engineer criteria to preserve a chosen list of States. A formula imposing an extraordinary and unequal federal burden needed a meaningful present-day relationship to the problem it targeted.

The Court also concluded that the substantial legislative record assembled in 2006 did not save §4(b). Even accepting that voting discrimination persisted, the record did not show discrimination approaching the pervasive and flagrant conditions that justified the original Act, and Congress had not used the new evidence to devise a coverage formula based on current conditions. Evidence concerning newer forms of vote dilution particularly highlighted the mismatch, because §4(b) was based on old indicators of barriers to ballot access rather than contemporary vote-dilution practices.

The Court stressed that the Fifteenth Amendment authorizes Congress to enforce the prohibition on racial discrimination in voting, but it is directed toward securing equal voting rights in the future rather than punishing States for past conduct. Congress remained free to enact a new coverage formula that was tailored to current conditions. But the existing formula could not continue to serve as the basis for preclearance.

Issue #2

Whether the Court held §5’s preclearance requirement itself unconstitutional, or invalidated the Voting Rights Act’s nationwide protections.

Holding

No. The Court invalidated only §4(b)’s coverage formula, expressly declined to decide §5’s independent constitutionality, and left §2’s permanent nationwide ban on racial discrimination in voting untouched.

Reasoning

Because §5 applied through the jurisdictions identified by §4(b), invalidating the formula left no operative statutory basis for subjecting jurisdictions to the ordinary preclearance requirement. The Court nevertheless confined its judgment to §4(b) and did not formally decide whether §5 could constitutionally operate if Congress enacted a valid, current coverage formula.

Section 2 remained fully enforceable nationwide. The decision did not eliminate the ability of the Federal Government or private plaintiffs to challenge discriminatory voting laws in court, nor did it question Congress’s general power under the Fifteenth Amendment to enact appropriate legislation protecting voting rights.

Concurrences

Justice Thomas

Reasoning

Justice Thomas joined the Court’s opinion in full, but would have gone further and held §5 itself unconstitutional. In his view, the majority’s analysis already established that the extraordinary burdens of preclearance could no longer be justified by present conditions in the covered jurisdictions.

He emphasized that §5 had originally been sustained only because pervasive and exceptional discrimination made an extraordinary federal intrusion necessary. Modern improvements in registration, turnout, minority representation, and compliance with federal decrees meant those exceptional circumstances no longer existed, while Congress’s 2006 amendments had broadened rather than reduced §5’s burdens.

Justice Thomas concluded that the legislative record could not demonstrate discrimination sufficiently widespread or flagrant to sustain §5. He therefore viewed the majority’s refusal to decide §5’s validity as unnecessarily postponing the provision’s inevitable invalidation.

Dissents

Justice Ginsburg

Reasoning

Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, would have affirmed. She maintained that Congress has broad authority under the Fifteenth Amendment to enforce the right to vote free from racial discrimination, especially where racial discrimination and the fundamental right to vote intersect. Under established precedent, the relevant question was whether Congress had rationally chosen appropriate means to enforce the Amendment, not whether the Court would have made the same legislative judgment.

In her view, reauthorization merited particular deference. Congress had repeatedly upheld and renewed a remedial scheme that the Court itself had previously sustained, and it had assembled an extensive contemporary record before the 2006 renewal. A successful remedy may reduce visible violations, she explained, but that success does not prove the remedy is unnecessary; otherwise Congress would face a catch-22 whenever an effective statute came up for renewal.

The 2006 record, Justice Ginsburg argued, documented that preclearance continued to block or deter discriminatory voting changes. It included hundreds of Justice Department objections, many more changes withdrawn or modified after federal inquiries, §5 enforcement actions, and evidence that after-the-fact §2 litigation was slower, more expensive, and often incapable of preventing harm before elections occurred. These materials gave Congress a rational basis to retain preclearance as a means of preventing both deliberate discrimination and backsliding.

She also rejected the majority’s conclusion that §4(b) lacked a current connection to discrimination. Covered jurisdictions had a distinctive history of racial discrimination, and the record showed that they continued to account disproportionately for successful §2 suits and exhibited greater racial polarization in voting. Congress could rationally retain coverage over jurisdictions that preclearance had repeatedly proved necessary to supervise, especially because the Act allowed compliant jurisdictions to bail out and allowed courts to bail in uncovered jurisdictions that committed constitutional violations.

Justice Ginsburg viewed the majority’s reliance on equal sovereignty as inconsistent with South Carolina v. Katzenbach, which had held that the doctrine concerned the terms on which new States enter the Union and did not bar different remedies for local evils that later emerged. She warned that extending the doctrine to scrutinize ordinary federal statutes that treat States differently could unsettle many laws and contradicted Congress’s reliance on Katzenbach when it renewed the Act.

Finally, she argued that Shelby County’s facial challenge should fail because the Act was plainly constitutional as applied to Alabama and Shelby County. Alabama had a recent history of successful §2 suits and intentional discrimination, while Shelby County itself had participated in litigation over discriminatory at-large election systems and included Calera, which implemented an unprecleared redistricting change that eliminated its sole majority-Black district. In her view, the Court should not invalidate the coverage formula across the Nation without first addressing the constitutionality of preclearance as applied to the plaintiff before it.

Justice Ginsburg summarized her objection with the point that discarding preclearance because it had effectively stopped discrimination was like throwing away an umbrella in a rainstorm because one was not getting wet. The Act’s effectiveness, she reasoned, was evidence that Congress had chosen a remedy worth preserving.