Election Law Blog
Background: Understanding the Shelby Decision
The Shelby Decision Explained
Does Congress Have the Authority to Reauthorize Section 5 of the VRA?
The Constitutional Structure of Voting Rights Enforcement (Franita Tolson
Florida State University - College of Law September 18, 2013 - 89 Washington Law Review 379 (2014) - Contrary to the Supreme Court’s recent decision in Shelby County v. Holder, this Article concludes that requiring preclearance of all electoral changes instituted by select jurisdictions under the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and thus is consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments.
Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder (James Uriah Blacksher, Attorney at Law; Lani Guinier, Harvard Law School February 23, 2014 Harvard Law and Policy Review, Vol 8, 2014, Forthcoming) - The authors argue that the appropriate response by Congress to Shelby County would be reasserting its explicit constitutional authority to interpret the Privileges or Immunities Clause.
Congressional Authority to Protect Voting Rights after Shelby County and Arizona Inter Tribal, (Franita Tolson, Florida State University - College of Law, February 14, 2014) - Both Shelby County and Arizona Inter Tribal tell a woefully incomplete story about congressional authority over elections, ignoring that the House’s authority to resolve election contests under state and federal law can be just as powerful as the state’s authority to determine the qualifications of electors ex ante.
Shelby County v. Holder Voting Rights Act Decision
The Response to Shelby
The U.S. Supreme Court's landmark decision in Shelby County, Alabama v. Holder to invalidate the formula for determining which jurisdictions must obtain preapproval for voting changes has sparked national debate on the continuing role of section 5 of the Voting Rights Act. Several justices expressed concerns about how relevant the 40 plus year old coverage formula is to current conditions. It is clear however that the debate transcends the question of "effectiveness" and is squarely focused on whether the time has come for this "temporary" provision of the Act to end permanently.
This provocative national debate has begun full swing and the push for congress to pass an updated formula has ensued. You can keep up with the conversation here.
Section 5 of the Voting Rights Act (VRA) requires a specific group of states and some local jurisdictions within states, to obtain preapproval or “preclearance” for any changes in the voting process. Which states are covered under Sec. 5 is determined by a formula in section 4b of the Act. This portion of the Voting Rights Act was approved as a temporary measure by Congress in the 1965 in response to aggressive tactics in Southern states to prevent Blacks from voting. Congress extended its provisions in 1970, 1975, 1982, 1992 and in 2006. The formula for determining which jurisdictions were covered was never altered after 1975.
Shelby County Alabama was covered under Sec. 5 and petitioned the federal district court to declare the coverage formula unconstitutional as it applied to Shelby County. Shelby County argued that the formula was so outdated that it now applied to jurisdictions that have not discriminated against Blacks in voting for decades. In addition, Black voter registration and turnout is at historic levels, negating the need for administrative oversight by the Dept. Justice over local election operations in the county.
The Sec. 5 Coverage Formula (General provisions)
What is Preclearance under the Voting Rights Act?
The Supreme Court overturned a lower court ruling against Shelby County that had upheld the coverage formula. The court did not rule on the constitutionality of Section 5 of the Act, but effectively stopped all oversight (preclearance) activity in covered jurisdictions by invalidating the coverage formula.
The court’s reasoning was influenced by federalism principles that require the court to weigh the burden federal requirements impose on the sovereignty of the states. When the Voting Rights Act was passed in 1964, the rampant disenfranchisement of Black voters was prevalent in the South, thus the coverage formula correctly targeted jurisdictions for the oversight function of section 5.
Nearly fifty years later, the coverage formula had not changed, after congress passed up on several opportunities to make the formula more current in Voting Rights Act renewal legislation in the eighties and recently in 2006.
Affect on the Law
The Department of Justices’ Voting Rights Section can no longer enforce the preclearance requirements of section 5 on the nine states and over 500 local jurisdictions previously covered under section 4b.
Section 2 of the Voting Rights is still enforceable. It prohibits any election process or device that diminishes the ability of minorities to elect the candidate of their choosing. This section is only enforceable through litigation however, unlike section 5 which required direct preapproval of voting changes made by covered jurisdictions.
Response to the Decision
Some previously covered states enacted voting laws that many civil rights advocates say are aimed at reducing African-American electoral participation. Most of these laws require voters to produce specific types of personal identification, limit early voting, and reduce precinct locations. All of these actions discourage Blacks from voting in elections according to opponents of the laws.
The most practical solution to Shelby is of course revising and updating the coverage formula; something which only congress can do. However, crafting an effective coverage formula is much more difficult than it sounds. There has been major legislation introduced in congress that would create an updated formula, but this Voting Rights Act Amendment has not progressed much in the body since it was introduced in 2014.
Voting Rights Act Amendment Summary