Shelby County, Alabama v. Holder, 570 U.S. 529 (2013)

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Shelby County, Ala. v. Holder, 570 U.S. 529 (2013), declared unconstitutional the preclearance provisions set down in the Voting Rights Act of 2006. The original Voting Rights Act of 1965 established certain covered districts and required those districts to preclear all changes to their voting laws with either the Justice Department or the Court of Appeals for the District of Columbia. If a covered district wanted to change the way voters were registered or move to at-large representation, they had to get outside approval. Covered districts were jurisdictions that had adopted various voting tests and which less than half the adult population voted in the 1964 national election. Once a jurisdiction was covered, local officials had the burden of establishing that all race discrimination in voting had been fully remedied. Congress modified the rules for covered districts slightly when passing the Voting Rights Acts of 1970 and 1975. The Voting Rights Acts of 1982 and 2006 did not make any adjustments in voting rights formulas. Districts that in the 1960s and 1970s had voting tests and low voting rates remained covered jurisdictions (unless they successfully bailed out) no matter what their practices in the twenty-first century.

Shelby County, Alabama, had been a covered district since 1965. In 2010, county officials filed a lawsuit claiming that the formula for determining covered districts was unconstitutional because Congress in 2006 had not relied on contemporary data when determining what districts remained subject to preclearance. After lower federal courts rejected this claim, Shelby County appealed to the Supreme Court of the United States.

The Supreme Court by a 5-4 vote declared unconstitutional the preclearance formula set out in the Voting Rights Act of 2006. Chief Justice Roberts’ majority opinion, joined by the other more conservative justices on the court, claimed Congress could not rely on old data when requiring that states preclear changes in voting rights laws. It was “irrational,” he stated, “for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story.” Justice Ruth Bader Ginsburg writing in dissent for the four more liberal justices on the court maintained that Congress had good reason for maintaining the existing preclearance formula. She noted, “Although covered jurisdictions account for less than 25 percent of the country’s population, [a] study revealed that they accounted for 56 percent of successful [Voting Rights Act] litigation since 1982.

Two differences marked the majority and dissenting opinions. Chief Justice Roberts regarded systemic racial discrimination in voting as a past relic. He claimed, “Blatant discriminatory evasions of federal decrees are rare.” Ginsburg insisted that race discrimination remains a severe contemporary phenomenon. She wrote, “Congress . . . found that voting discrimination had evolved into subtler second-generation barriers.” Conservatives treated preclearance as violating a “fundamental principle of equal sovereign” justified only by the extraordinary conditions of Jim Crow in mid-twentieth century America. Liberals insisted that the post-Civil War Amendments modified any such federalism principle, giving the federal government the power to interfere with state functions whenever doing so might remedy or prevent racial discrimination.

Formerly covered districts almost immediately took advantage of their new powers to change voting laws. Many passed measures requiring voters to show certain forms of IDs and otherwise tightening up voting rolls. Proponents of those measures claim that new voting regulations were necessary to prevent fraud and did not discriminate against persons of color. Opponents insist that no evidence of fraud exists and that these regulations placed severe burdens on poor persons of color. Many suits have been filed, but in the wake of Shelby County, they must be filed as direct violations of the post-Civil War Amendments and not as violations of the Voting Rights Act.

Mark A. Graber
University of Maryland Carey School of Law

Last updated: January 2019