preclearance

  • July 3, 2013
    Guest Post

    by Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. Schwinn is also Co-Editor, The Constitutional Law Prof Blog.

    The Supreme Court and the State of Texas wasted little time last week in revealing the full implications of the Court’s ruling in Shelby County v. Holder. Between the Court’s rulings and the State’s reactions, we will soon see fundamental changes to Texas’s election law that will almost surely have a retrogressive effect on the right to vote of racial minorities in that state.

    We all know that last week the Court in Shelby County gutted the preclearance provision of the Voting Rights Act by striking the coverage formula for preclearance. The ruling lifted the preclearance requirement for all previously covered jurisdictions, including Texas, and rendered preclearance dormant unless and until Congress can rewrite a coverage formula. 

    But less widely known is this: Just two days after the Court issued the Shelby County ruling, it issued orders vacating two federal court decisions denying preclearance to two proposed changes to Texas’s election law -- a new and stringent voter-ID requirement, and redistricting maps for Texas’s congressional and state legislative districts.  That same day, the Texas Attorney General announced that those proposed changes would go into effect -- that after Shelby County these changes “need not . . . go through the lengthy and costly federal preclearance process because of Tuesday’s ruling by the U.S. Supreme Court . . . .” 

  • July 2, 2013
    Guest Post

    by Gilda R. Daniels, Associate Professor of Law, University of Baltimore School of Law. Daniels is a former Deputy Chief in the Department of Justice, Civil Rights Division, Voting Section. For more on Daniels' work, visit her website

    Four years ago, the Supreme Court dared Congress to change the coverage formula that determined which jurisdictions would be subject to federal oversight of voting changes under Section 5 of the Voting Rights Act. Congress did nothing. In the recent Shelby County decision, the Court indicated that it was forced to act stating, “[Congress’s] failure to act leaves us today with no choice but to declare §4(b) unconstitutional.” Further, the Court seems to deny its culpability, positing that the “nation has changed” and the formula does not address “current conditions.” While it acknowledges that the Voting Rights Act is responsible in large part for increasing voter registration for black voters and the number of minority elected officials, it essentially says that enough is enough.  It gives the impression that it views Section 5 as medicine for a disease that is no longer at epidemic proportions, but refuses to allow a targeted and effective remedy to currently infected areas. Thus, a majority of the justices, without doubt, believe that the “current conditions” of fewer disparities in voter registration, for example, merit the removal of all life sustaining legislation. 

    We’ve seen this before. In 1883, the Supreme Court found that the Civil Rights Act of 1875, which sought to make former slaves full and equal citizens, was unconstitutional. This marked a turning point in becoming a nation where all men were truly created equal. In less than 20 years after passage of the Fifteenth Amendment, the last African American left Congress after states implemented barriers to the franchise, such as literacy tests, grandfather clauses, and felon disenfranchisement laws.  It would take seventy years before an African American would return to Congress from a former Confederate state and almost a century from the passage of the Fifteenth Amendment before Congress would provide the nation with tools to combat massive and violent disenfranchisement in passing the 1965 Voting Rights Act.  

    Have conditions changed since 1965? Absolutely! No more segregated lunch counters, water fountains, Bull Connor in the courthouse door.  Does discrimination in voting continue to exist?  Absolutely!  The Court admits that fact, but decides that a state’s right to be treated equally instead of a citizen’s right to equal treatment is supreme.

  • June 27, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law

    In  Shelby County, AL v. Holder, the Supreme Court, in a 5-4 decision split on ideological lines, declared unconstitutional the formula used under the Voting Rights Act of 1965 to determine which states and localities must receive pre-approval of their voting rights laws. This decision, which effectively ends the preclearance practice meant to preserve minority voting rights, will transform the right to vote for years to come. Once again, relying on the myth of racial progress, the Supreme Court failed to confront the racial balkanization in voting that exists, and it ultimately crippled the role that Voting Rights Act has in limiting it.

    This lawsuit was brought by Shelby County, Ala. This county, along with the rest of Alabama, as well as Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, Alaska, Arizona, and parts of seven other states (known as the “covered jurisdictions”) was required under Section Five of the Voting Rights Act to have any change in their election laws approved (or “precleared”) by the U.S. Department of Justice. The covered jurisdictions were selected for the preclearance requirement according to a formula set out in Section Four of the act. The formula considered the jurisdiction’s past history of voting rights violations, current violations, white and minority voting rates, and other factors.  Shelby County argued that both Section Five’s preclearance requirement and Section Four’s coverage formula were unconstitutional. The Court struck down the Section Four formula.

    Chief Justice Roberts' opinion for the five-justice conservative majority relied on two premises. First, the opinion stated that each state is due “equal sovereignty,” that is each state has power to regulate matters left to the states, including voting, to the same extent as other states. As innocuous as that might sound, consider Roberts’s second premise:  “the conditions that originally justified [the preclearance measures that justified differing treatment of states] no longer characterize voting in the covered jurisdictions.” Slip op. at 2.  Roberts pointed to substantial progress in voter participation and the increase in minority elected officials in the time from the passage of the act until now.  Id. at 13-15. Yet, Roberts continued, the current coverage formula does not reflect this reality.  “Coverage today is based on decades-old data and eradicated practices.”  Slip op. at 18.  “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”  Id. 

  • June 25, 2013

    by Jeremy Leaming

    The Supreme Court’s conservative majority has been itching to gut the landmark Voting Rights Act for some time and today it took a big step toward doing so. The conservative bloc led by Chief Justice John Roberts Jr. invalidated Section 4 of the Voting Rights Act (VRA), which includes a formula for determining the states, towns and localities that must obtain approval or preclearance from the federal government for proposed changes to their voting laws and procedures.

    In its 2009 opinion in Northwest Austin Municipal Util. Dist. No. One v. Mukasey, the conservative justices avoided the constitutional challenge to the heart of the Voting Rights Act, but nonetheless reiterated their desire to gut it.

    This time around a constitutional challenge brought by officials in a mostly white Alabama County gave the conservative bloc what it needed. Writing for the majority in Shelby County v. Holder, Roberts noted that in Northwest, his conservative colleagues “expressed serious doubt about the Act’s continued constitutionality.”

    Roberts continued, “We explained that Sec. 5 ‘imposes substantial federalism costs’ and ‘differentiates between States, despite our historic tradition that all the States enjoy equal sovereignty.’ We also noted that ‘[t]hings have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’ Finally we questioned whether the problems that Sec. 5 meant to address were still ‘concentrated in the jurisdictions singled out for preclearance.’” Sec. 4 includes the forumla for deciding what jursidictions must comply with the VRA's Sec. 5 preclearance provision. 

    Though the case raised constitutional claims of equality among Americans, like ensuring minorities are not deprived of a fundamental right to vote, the conservative justices in Shelby were much more interested in equality among the states. As they put, citing Northwest, a “fundamental principle of equal sovereignty. Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’”

    “The Voting Rights Act sharply departs from these basic principles,” Roberts wrote. “It suspends ‘all changes to state election law – however innocuous – until they have been precleared by federal authorities in Washington, D.C.”

    The conservative bloc was also incredibly confident that voter discrimination in the covered jurisdictions, mostly in the South, is a thing of the past. The majority pointed to an increase in minority registration and turnout.

    While voter discrimination allegedly subsided, Congress made the VRA more stringent and its formula for determining covered jurisdictions remained static, the majority groused. “Coverage today is based on decades-old data and eradicated practices,” Roberts wrote.

    When Congress reauthorized the VRA in 1996, which it did overwhelmingly, it should have altered its coverage formula, Roberts argued. “It instead reenacted a formula based on 40-year-old facts having no logical relationship to the present day,” he said.

    Roberts also claimed that the majority was carefully invalidating a provision of the VRA, and maintained the Court was providing “no holding” on Section 5. Instead Roberts said Congress could create a new formula.

    The dissent, lodged by Justice Ruth Bader Ginsburg and joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, however, found that the majority had usurped a job for Congress, and in a rather sloppy manner. (Congress, Ginsburg wrote, should be given deference in its constitutional authority to create appropriate legislation to enforce the 14th and 15th Amendments.)

  • March 1, 2013

    by Jeremy Leaming

    Following oral argument in Shelby County v. Holder several court-watchers, to the consternation of some, wrote that the Voting Rights Act’s integral enforcement provision, Section 5, looked to be on the chopping block largely based on courtroom theatrics.

    But many of those court-watchers, such as The New York Times’ Adam Liptak, noted that it was indeed risky to make  predications based only on oral argument, while nonetheless pointing out that in 2009 in Northwest Austin Municipal Utility District v. Holder, Chief Justice John Roberts and other members of the high court’s right-wing bloc made it rather clear that Congress should revisit the formula used to determine what states are covered by Section 5.

    As Liptak noted, Congress did not revisit the formula. And what happened during oral argument earlier this week? You had the Court’s right-wing justices grousing over the same things they did in Northwest. So it doesn’t take much of a leap to figure Justice Anthony Kennedy, who asked how much longer must Alabama remain under U.S. “trusteeship” is ready to join Roberts, and Justices Antonin Scalia, Clarence Thomas and Samuel Alito in striking Section 5, by ending the use of the formula. (Section 5 requires states and localities, mostly in the South, to get “preclearance” of any proposed changes to their voting laws and procedures to ensure that they do not have the effect of discriminating against voters. The Constitution’s 14th and 15th Amendments provide Congress the power to take appropriate action to ensure that states do not deprive people of liberty or discriminate against voters because of their race.)

    The Brennan Center’s Myrna Pérez writes that the “arguments themselves do not provide much predictive value,” and that little was discussed during oral argument “over what exactly Congress needed to do differently to have appropriately fulfilled its duties.”

    ACS President Caroline Fredrickson also told TPM’s Sahil Kapur that the “silver lining is ultimately oral arguments are rarely a predictor of outcomes of the case.”

    Yep, lots of folks were predicating Kennedy would save the day for the Obama administration’s landmark health care reform law the Affordable Care Act. And of course we know how that turned out.

    As noted on this blog numerous times, Section 5 is the power behind the Voting Rights Act and Congress has the constitutional authority to combat racial discrimination in voting. Section 5, reauthorized in 2006, has helped prevent states bent on suppressing the votes of minorities from doing so, including Alabama, South Carolina, Texas and Florida. Without Section 5, those states will have great leeway in pursuing schemes to dilute the minority vote.