Shelby County, Alabama v. Holder, Attorney General, et al. (2013) No. 12-96
The facts of the case are these: “The Voting Rights Act of 1965 was enacted to address entrenched racial discrimination in voting, ‘an insidious and persuasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution’ (South Carolina v. Katzenbach, 383 US 301, 309). Section 2 of the Act, which bans any ‘standard, practice, or procedure’ that ‘results in a denial or abridgement of the right of any citizen … to vote on account of race or color,’ (42 USC ss.1973(a)), applies nationwide, is permanent, and is not at issue in this case. Other sections apply only to some parts of the country. Section 4 of the Act provides the ‘coverage formula,’ defining the ‘covered jurisdictions’ as States or political subdivisions that maintained tests or devices as prerequisites to voting, and had low voter registration or turnout, in the 1960s and early 1970s. (ss.1973b(b)). In those covered jurisdictions, ss.5 of the Act provides that no change in voting procedures can take effect until approved by specified federal authorities in Washington, D.C. (ss.1973c(a)). Such approval is known as ‘preclearance…’ Petitioner Shelby County, in the covered jurisdiction of Alabama, sued the Attorney General in Federal District Court in Washington, D.C., seeking a declaratory judgment that sections 4(b) and 5 are facially unconstitutional, as well as a permanent injunction against their enforcement. The District Court upheld the Act, finding that the evidence before Congress in 2006 was sufficient to justify reauthorizing ss.5 and continuing ss.4(b)’s coverage formula. The D.C. Circuit affirmed. After surveying the evidence in the record, that court accepted Congress’s conclusion that ss.2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, that ss.5 was therefore still necessary, and that the coverage formula continued to pass constitutional muster. The Supreme Court granted certiorari, to decide this case.”
The main issue in this case is this: 1. Is the Voting Rights Act of 1965’s coverage formula permissible under the Constitution of the United States?
The Court held that 1. The Voting Rights Act of 1965’s coverage formula is unconstitutional.
Chief Justice Roberts, wrote the majority opinion in this case: “The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And ss.4 of the Act applied that requirement only to some States—an equally dramatic departure from the principles that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, ‘an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution’ (South Carolina v. Katzenbach, 383 US 301, 309 (1966). As we explained in upholding the law, ‘exceptional conditions can justify legislative measures not otherwise appropriate’ (Id., at 334). Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years (See Voting Rights Act of 1965, ss.4(a), 79 Stat. 438). Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, ‘the racial gap in voter registration and turnout [was] lower in the States originally covered by ss.5 than it [was] nationwide’ (Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 US 193, 203-204 (2009). Since that time, Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered by ss.5, with a gap in the sixth State of less Registration, by Sex, Race, and His-panic Origin, for States (Nov. 2012) (Table 4b). At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, ‘the Act imposes current burdens and must be justified by current needs’ Northwest Austin, 557 US, at 203. The Fifteenth Amendment was ratified in 1870, in the wake of the Civil War. It provides that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,’ and it gives Congress the ‘power to enforce this article with appropriate legislation.’ The first century of congressional enforcement of the Amendment, however, can only be regarded as a failure (Id., at 197). In the 1890s, Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia began to enact literacy tests for voter registration and to employ other methods designed to prevent African-Americans from voting (Katzenbach, 383 US, at 310). Congress passed statutes outlawing some of these practices and facilitating litigation against them, but litigation remained slow and expensive ones were struck down. Voter registration of African-Americans barely improved (Id., at 313-314)… In those jurisdictions, ss.4 of the Act banned all such tests or devices (ss.4(a), 79 Stat. 438. Section 5) provided that no change in voting procedures could take effect until it was approved by federal authorities in Washington, D.C.—either the Attorney General or a court of three judges (Id., at 439). A jurisdiction could obtain such ‘preclearance’ only by proving that the change had neither ‘the purpose [nor] the effect of denying or abridging the right to vote on account of race or color (Ibid). Section 4 and 5 were intended to be temporary; they were set to expire after five years (See ss.4(a), id., at 438; Northwest Austin, supra, at 199). In South Carolina v. Katzenbach, we upheld the 1965 Act against constitutional challenge, explaining that it was justified to address ‘voting discrimination where it persists on a pervasive scale’ (383 US, at 308)… We upheld each of these reauthorizations against constitutional challenge (See Georgia v. United States, 411 US 526 (1973); City of Rome v. United States, 446 US 156 (1980); Lopez v. Monterey County, 525 US 266 (1999). In 2006, Congress again reauthorized the Voting Rights Act for 25 years, again with no change to its coverage formula. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amend-ments Act, 120 Stat. 577. Congress also amended ss.5 to prohibit more conduct than before (ss.5, id., at 580-581; see Reno v. Bossier Parish School Bd., 528 US 320, 341 (2000) (Bossier II); Georgia v. Ashcroft, 539 US 461 (2003). Section 5 now forbids voting changes with ‘any discriminatory purpose’ as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, ‘to elect their preferred candidates of choice’ (42 USC ss.1973c(b)-(d)… The Constitution and laws of the United States are ‘the supreme Law of the Land’ (US Const., Art. VI, cl.2) State legislation may not contravene federal law. The Federal Government does not, however, have a general right to review and veto state enactments before they go into effect. A proposal to grant such authority to ‘negative’ state laws was considered at the Constitutional Convention, but rejected in favor of allowing state laws to take effect, subject to later challenge under the Supremacy Clause (See 1 Records of the Federal Convention of 1787, pp. 21, 164-168 (M. Farrand ed. 1911); 2 id., at 27-29, 390-392)… We have also previously highlighted the concern that ‘the preclearance requirements in one State [might] be unconstitutional in another’ (Northwest Austin, 557 US., 203; see Georgia v, Ashcroft, 539 US., at 491 (Kennedy, J. concurring) (‘considerations of race that would doom a redistricting plan under the Fourteenth Amendment or ss.2 [of the Voting Rights Act] seem to be what save it under ss.5’). Nothing has happened since to alleviate this troubling concern about the current application of ss.5… Striking down an act of Congress ‘is the gravest and most delicate duty that this Court is called on to perform’ (Blodgett v. Holden, 275 US 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. This is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed out broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare ss.4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance. Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found ss.2. We issue no holding on ss.5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an ‘extraordinary departure from the traditional course of relations between the States and the Federal Government’ (Presley, 502 US., at 500-501). Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions. The judgment of the Court of Appeals is reversed.”
Justice Thomas, wrote a concurring opinion in this case stating in part: “I join the Court’s opinion in full but write a separate opinion to explain that I would find ss.5 of the Voting Rights Act unconstitutional as well. The Court’s opinion sets forth the reasons… Today, our Nation has changed. ‘The conditions that originally justified [ss.5] no longer characterize voting in the covered jurisdictions’ (Ante, at 2. At the Court explains: ‘Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at un-precedented levels’ (Ante, at 13-14 quoting Northwest Austin Municipal Util. Dist. No. one v. Holder, 557 US 193, 202 (2009). In spite of these improvements, however, Congress increased the already significant burdens of ss.5. Following its reenactment in 2006, the Voting Rights Act was amended to ‘prohibit more conduct than before’ (Ante, at 5.) ‘Section 5 now forbids voting changes with ‘any dis-criminatory purpose’ as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, ‘to elect their preferred candidates of choice’ (Ante, at 6.). While the pre-2006 version of the Act went well beyond protection guaranteed under the Constitution, (see Reno v. Bossier Parish School Bd., 520 US 471, 480-482 (1997), it now goes even further… While the Court claims to ‘issue no holding on ss.5 itself,’ (ante, at 24), its own opinion compellingly demonstrates that Congress has failed to justify’ ‘current burdens’ with a record demonstrating ‘current needs’ (See ante, at 9 (quoting Northwest Austin, supra, at 203). By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision. For the reasons stated in the Court’s opinion, I would find ss.5 unconstitutional.”
Justice Ginsburg, with whom Justice Breyer, Sotomayor, and Kagan join in a dissenting opinion, in stating in part: “In the Court’s view, the very success of ss.5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated… With overwhelming supporting in both Houses, Congress concluded that, for two prime reasons, ss.5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation… The record supporting the 2006 reauthorization of the VRA is also extraordinary. It was described by the Chairman of the House Judiciary Committee as ‘one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27 ½ years’ he had served in the House (152 Cong. Rec. H5143 (July 13, 2006) (statement of Rep. Sensenbrenner). In my judgment, the Court errs egregiously by overriding Congress’ decision. For the reasons stated, I would affirm the judgment of the Court of Appeals.”
The significance of this case is that: I wish the Court would do this more often… Congress has the authority to enforce the Fifteenth Amendment; however, the Congress doesn’t have the right to over-regulate according to the Court today “…The Federal Government does not, however, have a general right to review and veto state enactments before they go into effect. A proposal to grant such authority to ‘negative’ state laws was considered at the Constitutional Convention, but rejected in favor of allowing state laws to take effect, subject to later challenge under the Supremacy Clause…” The Supreme Court for the past 50 years, has ceded to Congress’ authority. The Supreme Court’s job, is to be a check on Congressional power, in this instance the Court found that after 50 years of a law being reauthorized, it at least needed to have a changed enforcement mechanism. While the significance of this case was and is being overblown by the President, and by the media, the requirement that Congress change the formula is actually a very light check on Congressional power.
Legal Briefed by: David A.W. Hittle