Shelby County v. Holder
|Shelby County v. Holder|
|Argued February 27, 2013|
Decided June 25, 2013
|Full case name||Shelby County, Alabama, Petitioner v. Eric H. Holder, Jr., Attorney General, et al.|
|Citations||570 U.S. ___ (more)|
|Prior history||Petition denied, 811 F. Supp. 2d 424 (D.D.C. 2011); decision affirmed, 679 F.3d 848 (D.C. Cir. 2012)|
|Section 4(b) of the Voting Rights Act of 1965 is unconstitutional.|
|Majority||Roberts, joined by Scalia, Kennedy, Thomas, Alito|
|Dissent||Ginsburg, joined by Breyer, Sotomayor, Kagan|
|U.S. Const. amend. XV; Voting Rights Act of 1965|
Shelby County v. Holder, 570 U.S. 2 (2013), is a landmark United States Supreme Court case regarding the constitutionality of two provisions of the Voting Rights Act of 1965: Section 5, which requires certain states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices; and Section 4(b), which contains the coverage formula that determines which jurisdictions are subjected to preclearance based on their histories of discrimination in voting.
On June 25, 2013, the Court ruled by a 5-to-4 vote that Section 4(b) is unconstitutional because the coverage formula is based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states. The Court did not strike down Section 5, but without Section 4(b), no jurisdiction will be subject to Section 5 preclearance unless Congress enacts a new coverage formula.
Congress enacted the Voting Rights Act of 1965 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." Section 5 of the Act contains a "preclearance" requirement that requires certain states and local governments to obtain a determination by the United States Attorney General or a three-judge panel of the United States District Court for the District of Columbia that changes to their voting laws or practices do not "deny or abridge the right to vote on account of race, color, or membership in a language minority group", before those changes may be enforced. Section 4(b) contains the coverage formula that determines which states and local governments are subject to preclearance under Section 5. The formula covers jurisdictions that, as of November 1964, November 1968, or November 1972, maintained a prohibited "test or device" as a condition of registering to vote or voting and had a voting-age population of which less than 50 percent either were registered to vote or actually voted in that year's presidential election. Section 4(a) allows covered jurisdictions that have made sufficient progress in ending discriminatory voting practices to "bail out" of the preclearance requirement.
The Supreme Court upheld the preclearance requirement and coverage formula as constitutional enforcement legislation under Section 2 of the Fifteenth Amendment in South Carolina v. Katzenbach (1966). The preclearance requirement initially was set to expire five years after enactment, but amendments to the Act in 1970, 1975, and 1982 reauthorized Section 5; the 1970 and 1975 amendments also updated the coverage formula.:571 The Supreme Court upheld these reauthorizations as constitutional in Georgia v. United States (1973), City of Rome v. United States (1980), and Lopez v. Monterey County (1999).:5 In 2006, Congress reauthorized Section 5 for an additional 25 years, but it did not change the coverage formula from the 1975 version.
Shortly after the 2006 reauthorization, a Texas utility district sought to bail out from Section 5 preclearance and, in the alternative, challenged the constitutionality of Section 5. The Supreme Court ruled 9-0 in Northwest Austin Municipal Utility District No. 1 v. Holder that government entities that did not register voters, such as the utility district, had the right to file suit to bail out of coverage. Because this decision resolved the issue, the Court invoked constitutional avoidance and declined to address the constitutionality of Section 5. Justice Thomas dissented from this portion of the opinion and would have declared Section 5 unconstitutional.
Shelby County, in the covered jurisdiction of Alabama, sued the U.S. Attorney General in the U.S. District Court for D.C. in Washington, D.C, seeking a declaratory judgment that sections 4(b) and 5 are facially unconstitutional and a permanent injunction against their enforcement. On September 21, 2011, Judge John D. Bates upheld the provisions, finding that the evidence before Congress in 2006 was sufficient to justify reauthorizing Section 5 and continuing Section 4(b)'s coverage formula.
Court of Appeals
On May 18, 2012, the U.S. Court of Appeals for the D.C. Circuit affirmed the decision of the District Court upholding the constitutionality of Section 4(b) and Section 5. After surveying the evidence in the Congressional record associated with the 2006 reauthorization of Section 5, the appellate court accepted Congress's conclusion that Section 2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, that Section 5 was therefore still justified, and that the coverage formula continued to pass constitutional muster.
The Supreme Court granted certiorari to hear the case on the limited question of "whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution." The Supreme Court heard oral arguments on February 27, 2013. Media coverage of the Justices' comments during oral arguments portrayed the Court as appearing likely to hold Section 5 or Section 4(b) unconstitutional. Justice Antonin Scalia drew criticism from civil rights leaders, after expressing his belief during oral arguments that Congress reauthorized Section 5, not because the legislation was necessary, but because it constituted a "racial entitlement" that Congress was unlikely to end.
Opinion of the Supreme Court
The Supreme Court struck down Section 4(b) as unconstitutional in its June 25, 2013 ruling. The majority opinion was delivered by Chief Justice John Roberts joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. The Court held that Section 4(b) exceeded Congress's power to enforce the Fourteenth and Fifteenth Amendments, reasoning that the coverage formula conflicts with the constitutional principles of federalism and "equal sovereignty of the states" because the disparate treatment of the states is "based on 40 year-old facts having no logical relationship to the present day" and thus is not responsive to current needs. The Court expressed that Congress cannot subject a state to preclearance based simply on past discrimination. It noted that since the coverage formula was last modified in 1975, the 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 Court declared that the Fifteenth Amendment "commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future."
Roberts wrote that the Act was immensely successful "at redressing racial discrimination and integrating the voting process” and noted that the U.S. has made great progress thanks to the Act. But he added: “If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula.” According to the Court, "Regardless of how to look at the record no one can fairly say that it shows anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation."
The Court did not subject Section 4(b) to the "congruence and proportionality" standard of review or address whether that standard is the appropriate measure to use when determining the constitutionality of legislation passed pursuant to Section 2 of the Fifteenth Amendment. The Court also noted the federalism concerns raised by the Section 5 preclearance requirement, but it did not reach the issue of whether Section 5 remains constitutional. However, because the Section 5 preclearance requirement applies only to jurisdictions covered by the Section 4(b) coverage formula, the decision rendered Section 5 inoperable unless Congress enacts a new coverage formula.
Justice Ruth Bader Ginsburg wrote a dissenting opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. The dissent would have held that Congress had sufficient evidence before it to determine that the coverage formula remained responsive to current needs. The dissent acknowledged that discrimination in voting has decreased in the covered jurisdictions since the Voting Rights Act's enactment, but it attributed much of that decrease to the Act itself, noting that "[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."
The controversial Supreme Court opinion prompted heavy media coverage of reactions from political leaders, activists, and the legal community. President Barack Obama expressed deep disappointment with the decision and called on Congress "to pass legislation to ensure every American has equal access to the polls." Attorney General Eric Holder also expressed disappointment with the decision, and he pledged that the Department of Justice "will not hesitate to take swift enforcement action—using every legal tool that remains available to us—against any jurisdiction that seeks to take advantage of the Supreme Court's ruling by hindering eligible citizens' full and free exercise of the franchise." On July 25, 2013, Holder announced that the Department of Justice will ask a federal court to subject the formerly covered state of Texas to preclearance under the "bail in" provision contained in Section 3 of the Voting Rights Act, which was unaffected by the Court's decision.
When asked whether a polarized Congress could agree on a new coverage formula, Speaker John Boehner acknowledged the importance of the role of the Voting Rights Act over the previous 40 years and said that he was still reviewing the decision and trying to determine the next steps. Then-House Majority Leader Eric Cantor expressed his hope that Congress would "put politics aside" and determine how to ensure that voting rights remain protected. Representative John Lewis, a leader in the civil rights movement who was present when President Lyndon B. Johnson signed the Voting Rights Act into law, said that the decision disregarded the country's history of voting discrimination and that he fears the decision will allow local election officials "to go back to another period." Representative Bob Goodlatte, Chair of the House Judiciary Committee, said that the committee will review new voting data but that he is unsure whether the committee will take any specific action in response to the decision. On July 18, 2013, the House Judiciary Subcommittee on the Constitution and Civil Justice held a hearing to discuss how the House should respond to the ruling.
Senate Majority Leader Harry Reid said that Democrats were concerned with the ruling in light of "Republicans doing everything they could to suppress voting" in the 2012 elections, and he stated that the Senate will act to address the decision. Senator Bob Corker, however, said that he "cannot imagine" Congress ever agreeing on the terms of a new coverage formula. The Senate Judiciary Committee began to hold hearings on July 17, 2013 to discuss how to respond to the decision.
At the state level, Texas and Mississippi officials pledged within hours of the decision to enforce voter ID laws that had not been precleared by the Attorney General. Florida Secretary of State Ken Detzner said it made no sense for five Florida counties to be subjected to preclearance based on decades-old voting rights data and that the decision will save the state money. New York Governor Andrew Cuomo found the decision deeply troubling and called upon Congress to pass a new coverage formula.
Ilya Shapiro of the Cato Institute said that the Supreme Court's decision "restore[d] the constitutional order, the status quo ante the temporary Sections 4/5, because there is no longer systemic racial disenfranchisement, or at the very least in the covered jurisdictions." In contrast, Jon Greenbaum, chief counsel of the Lawyers' Committee for Civil Rights Under Law, said that because of the decision, "[m]inority voters in places with a record of discrimination are now at greater risk of being disenfranchised than they have been in decades" and that their only recourse will be to pursue expensive litigation. Penda Hair, co-director of national racial justice organization Advancement Project, spoke along similar lines, saying, "The Supreme Court's ruling rolls back legislation that courageous Americans fought so hard for, even giving their lives in many cases, to ensure that all citizens can participate in our democracy. Today's decision threatens the promise of equal access to the ballot – especially when the majority of voters of color who voted last year, 65.8 percent, live in states covered by the Section 4 formula."
An investigation by ProPublica in October 2017 revealed that Chief Justice John Roberts used erroneous data in the ruling. Roberts claimed that the registration gap between blacks and whites had shrunk dramatically in southern states since the Civil Rights Act of 1965, this calling into question why six southern states were subject to stringent oversight. Roberts included hispanics into his numbers for whites, including even those who could not register to vote because they were not U.S. citizens, which made the white registration rate appear lower than what it truly was.
Since the ruling, several states once covered under preclearance have passed laws that removed provisions such as online voting registration, early voting, "Souls to the Polls" Sunday voting, same-day registration, and pre-registration for teens about to turn 18. The ruling has also resulted in some states implementing voter identification laws and becoming more aggressive in expunging allegedly ineligible voters from registration rolls. States that have changed their voting policies post-Shelby include both jurisdictions that were previously required to undergo federal preclearance, as well as some that were not covered, including Alabama, Arizona, Arkansas, North Carolina, Ohio, Wisconsin and Texas.
After Shelby, Alabama Republicans drew a new legislative apportionment map of the state that some contend is illegal. Democrats said that the new map packs African-American voters into too few voting districts and is an effort to hamper the power of the largely Democratic voting base.
In 2014, the Supreme Court said it would hear appeals from the Alabama Legislative Black Caucus regarding the redistricting.
In an opinion issued by Arizona's attorney general in 2013, Arizona residents who registered to vote using forms provided by the federal government must also provide documentation proving their citizenship, or their registration will be labeled invalid. Attorney General Tom Horne said those who registered using federal registration could vote in federal elections, but not state and local elections without showing proof of citizenship. The attorney general also held that these same registrants will not be able to sign petitions for candidates or ballot initiatives. Thousands may be barred from state and local voting due to this opinion.
Shortly after the Shelby ruling, North Carolina Gov. Pat McCrory signed into law H.B. 589, which terminated valid out-of-precinct voting, same-day registration during the early voting period, and pre-registration for teenagers about to turn 18, while also enacting a voter ID law. Opponents criticized this law as adversely affecting minority voters.
The law was challenged, on behalf of the North Carolina State Conference of the NAACP, by a lawsuit filed by Advancement Project, pro bono counsel Kirkland & Ellis, and North Carolina attorneys Adam Stein and Irv Joyner. The suit alleged that the law violates Section 2 of the Voting Rights Act, as well as the 14th and 15th Amendments of the U.S. Constitution.
On July 29, 2016, a three-judge panel of the Fourth Circuit Court of Appeals reversed a trial court decision in a number of consolidated actions, finding that the new voting provisions targeted African Americans "with almost surgical precision" and that the legislators had acted with "discriminatory intent" in enacting strict election rules; the Court struck down the law's photo ID requirement and changes to early voting, preregistration, same-day registration and out-of-district voting.
In February 2014, the Ohio House approved a bill that eliminated the so-called "Golden Week" during which Ohio voters could register and vote on the same day. The bill also cut six days from Ohio's early voting period. In a separate bill, the House made it easier for registrars to reject absentee ballots for missing information. This bill ends a program that mailed absentee ballots to all registered voters. Under the new law, Ohio's secretary of state would have to get lawmaker approval to mail these absentee ballots.
While its voter ID law was passed in 2011, Texas did not enact the law until 2013 after the Shelby ruling, when the state was no longer subject to federal preclearance for changes to its voting laws. Under the law, Texas voters must show a photo ID to vote. While there are some exemptions, such as for voters with disabilities, most are required to produce a Texas driver’s license or state ID card. Other forms of acceptable ID include concealed handgun licenses, military ID, U.S. citizenship papers with photo and a U.S. passport.
If the voter does not possess one of the forms of acceptable photo ID and cannot reasonably obtain one, the voter may present one of the following, after which he or she must execute a Reasonable Impediment Declaration: a copy or original of... a government document that shows the voter’s name and an address, including the voter’s voter registration certificate; a current utility bill; a bank statement; a government check; a paycheck; or (a) a certified domestic (from a U.S. state or territory) birth certificate or (b) a document confirming birth admissible in a court of law which establishes the voter’s identity (which may include a foreign birth document).
Critics of the law charge that it is unconstitutional. They also say that it will bar legitimate voters from voting and discourage citizens. Examples of problems under the new law involved public figures: Texas judge, Sandra Watts, was unable to vote because the name on her photo ID did not match the name on the voter rolls. Also, State Senator Wendy Davis and then-Attorney General Greg Abbott were delayed in voting under the new law. They were all able to vote after signing affidavits attesting that they were who they claimed to be. 
In 2014, the American Civil Liberties Union and the Advancement Project filed a petition asking the Supreme Court to block Wisconsin's voter ID law, charging the measure would disproportionately affect voters of color. Challenging the law under Section 2 of the Voting Rights Act and the U.S. Constitution, Advancement Project litigated on behalf of the League of United Latin American Citizens of Wisconsin, Cross Lutheran Church, Wisconsin League of Young Voters Education Fund, and the Milwaukee Area Labor Council of the AFL-CIO. Advancement Project claimed that Wisconsin's voter ID law, enacted in 2012, is "part of a broader attack on the right to vote." On October 9, 2014, the U.S. Supreme Court issued an emergency stay in this case, blocking a Seventh Circuit Court of Appeals order to implement Wisconsin’s voter ID law and enabling registration under previous rules for the fall of 2014 elections. It has yet to rule on the provisions of Wisconsin's law.
On January 16, 2014 a bipartisan group of Congress members consisting of Representatives Jim Sensenbrenner and John Conyers and Senator Patrick Leahy introduced H.R.3899/S.R.1945, entitled the "Voting Rights Amendment Act of 2014". The bill was introduced to strengthen the Voting Rights Act of 1965 (VRA) and vital protections of it following the 2013 Supreme Court's decision in Shelby County v. Holder. The proposed Voting Rights Amendment Act of 2014 consists of five components:
- Based on empirical conditions and current data there is a new coverage formula for Section 4 based on a rolling calendar, updated with a current fifteen-year time period to exempt states who are no longer discriminating or add new ones who are. The last part is designed to create a deterrent against future voting rights violations. Under the new formula states with five violations of federal law to their voting changes over the past fifteen years will have to submit future election changes for federal approval. Local jurisdictions would be covered if they commit three or more violations or have one violation and "persistent, extremely low minority turnout" over the past fifteen years. While Voter ID laws can still be blocked by the Department of Justice in the new states covered under Section 4, objections to voter ID laws by the department will not count as a new violation.
- Section 3 of the bill makes it possible that a court may order jurisdictions not covered by Section 4 to have future changes to its election laws preapproved by the federal government after plaintiffs file a corresponding application with the court. Plaintiffs have to show evidence of intentional voting discrimination to enable such a bail-in. Any violation of the VRA or of federal voting rights law—whether intentional or not—can be under the new section 3 proposal grounds for a bail-in, but court objections to voter ID laws that are not found to be intentionally discriminatory cannot be used as grounds for "bail-in" under Section 3.
- Jurisdictions in all U.S. states have to provide notice in the local media and online of any election procedures related to redistricting, changes within 180 days of a federal election and the moving of a polling place. Citizens can thus easier identify potentially harmful voting changes in states not subject to Sections 4 and 5 of the VRA.
- Plaintiffs seeking a preliminary injunction against a potentially discriminatory voting law must only show that the hardship to them outweighs the hardship to the state if a law is blocked in court pending a full trial.
- Affirming the attorney general's authority to send federal observers in states subject to Section 4 to monitor elections in these states the proposal expands the attorney general's authority to send observers to jurisdictions with a history of discriminating against language minority groups.
As of June 2014 the proposed Voting Rights Amendment Act of 2014 was in limbo because there is no widespread support to amend the Voting Rights Act as it was by its re-authorization in 2006 by Congress. Both the House and Senate versions of the bill ultimately died in their respective Judiciary Committees. The House introduced the Voting Rights Amendment Act of 2015 the following year. It was referred to the House Judiciary Committee on the day it was introduced, but didn't move past the committee stage. The Voting Rights Advancement Act of 2015 (H.R. 2867), a similar measure to the Voting Rights Amendment Act of 2015, was introduced on June 24, 2015, but died with the end of the 114th United States Congress. The most recent legislative attempt, the Voting Rights Amendment Act of 2017 (H.R. 3239), was introduced on July 13, 2017, and again referred to the House Judiciary Committee.
New York Senator Kirsten Gillibrand proposed to make online voter registration universal. Under her proposal states with existing online access would expand their system beyond those with state-issued IDs to allow more young people, seniors, minorities and the poor access and update their own voter records online. To ensure security, online systems will verify voter's eligibility by checking each person's personal information, like date of birth, Social Security, and address. According to the Brennan Center for Justice at New York University Law School in 2014 several states (California, Colorado, Hawaii, Illinois, Louisiana, Massachusetts, Minnesota, Mississippi, Nebraska, Oklahoma, South Carolina, Utah) and Washington, D.C. passed laws improving voter access, while laws restricting voter access was only passed by a minority of states in 2014. Introduced and pending legislation to expand and improve access to registration and voting include as of December 2014 electronic transfer of voter registration information, online registration, portability i.e. the possibility to move a voter's registration with her when she moves to a new address within the same county or state, fail-safe protections, easier registration and voting for students, people with disabilities, military members and for voters who speak a language other than English as well as expansion of opportunities for voting registration and for early in-person voting.
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