Share & Connect
In a 5-4 decision, the Supreme Court has invalidated the coverage formula used to determine whether certain states or political subdivisions need to seek permission from federal authorities before making any change to their electoral law (a requirement known as ‘preclearance’) under the Voting Rights Act of 1965.
The preclearance requirement targeted locales that imposed tests as a prerequisite for voting and had low voter turnout or registration in the 1960s and 70s. Although the preclearance requirement and its attendant coverage formula were originally supposed to be temporary provisions, Congress has repeatedly reauthorized them. The most recent reauthorization occurred in 2006, when the act was renewed for another 25 years.
Shelby County in Alabama was one of the jurisdictions subject to the preclearance requirement. In 2010 it sued Attorney General Eric Holder in Federal District Court seeking a declaratory judgment that the requirement and the coverage formula were unconstitutional, but the district court upheld the act. Shelby County appealed to the Court of Appeals for the DC Circuit only to lose again.
Writing for the majority, Chief Justice John Roberts said that “the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of states.” He argued that the Voting Rights Act represented a sharp departure from that principle since it suspended all changes to state electoral law—no matter how trivial—unless they were approved by the federal government.
“Despite the tradition of equal sovereignty, the act applies to only nine states (and several additional counties),” Roberts continued.
“While one state waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect immediately, through the normal legislative process.”
In 1966, the Supreme Court upheld the expansion of federal power on the grounds that there was no other way to combat entrenched racial discrimination. But Roberts argued that the world has changed a great deal since the 1960s, and the coverage formula used to determine which jurisdictions are subject to the preclearance requirement no longer makes sense.
Roberts pointed out that Philadelphia, Mississippi and Selma Alabama, two cities that witnessed horrific examples of racist violence during the 1960s, are now both governed by African-American mayors.
“Today both of those towns are governed by African-American mayors. Problems remain in these states and others, but there is no denying that, due to the Voting Rights Act, our nation has made great strides,” he said.
Roberts argued that using data from the 1960s and 70s to determine which jurisdictions are subject to the preclearance requirement is illogical. “In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”
“[Congress] reenacted a formula based on 40-year-old facts having no logical relation to the present day.”
Although the coverage formula has been ruled unconstitutional, the preclearance requirement itself has not, and Roberts emphasized that Congress is free to draft a new coverage formula that better reflects current realities. “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.”
However, given the partisan divide in the current Congress, many pundits think it unlikely that a new coverage formula would be able to pass.
In her dissenting opinion, Justice Ruth Bader Ginsburg argued that “jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated.”
Ginsburg went on to point out that, between 1982 and 2006, the Department of Justice blocked over 700 changes to voting laws on the grounds that they were discriminatory.
“Congress approached the 2006 reauthorization of the [Voting Rights Act] with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story,” Ginsburg wrote.
Image credit: SEIU via Flickr