Which Supreme Court decision held that Section 4 of the Voting Rights Act was unconstitutional?

President Lyndon Johnson signs the Voting Rights Act, August 6, 1965.

February 2, 2017
By Amée LaTour

In a confirmation hearing for the nomination of Jeff Sessions as U.S. Attorney General, Hawaii Democratic Sen. Mazie Hirono inquired about his commitment to prosecute “state laws that have a discriminatory voting impact,” claiming, “We know that since the Supreme Court's decision that did away with major parts of the Voting Rights Act that numerous states, perhaps 13 states, have already enacted laws that could be deemed contrary to the Voting Rights Act.”[1]

Was Hirono correct? Did the U.S. Supreme Court do away with major parts of the Voting Rights Act?

In the 2013 case Shelby County, Alabama v. Holder, Attorney General, Et Al. the U.S. Supreme Court ruled that “Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance.”[2][3]

Subsection 4(b) prescribed a formula for determining whether jurisdictions with histories of voter discrimination would be subject to Section 5 of the Act, which requires those jurisdictions to obtain federal approval before implementing new voting laws. The court invalidated the formula prescribed in Section 4. However, the court left Section 5 intact, although from a practical standpoint, it became unenforceable until enactment of a new formula for determining applicability.[2]

Background

Congress adopted the Voting Rights Act in 1965 to end discriminatory practices by state and local governments that limited voting rights based on race or color.[4]

Subsection 4(b) of the act specified that any state or political subdivision is subject to the preclearance requirement in Section 5 if: "(1) the Attorney General determines that it maintained on November 1, 1964, any test or device,” where “test or device” refers to tests of literacy, moral character, educational level, or other prerequisite to vote or register to vote, as defined in subsection 4(c), and "(2) the Director of the Census determines that less that 50 per centum of the persons of voting age were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964."[4]

Section 4(b) was amended in 1970 and 1975 to reference more current presidential election dates (November 1968 and 1972, respectively). As part of the 1975 amendment, the definition of “test or device” was amended to include disseminating election materials and ballots in English only in jurisdictions where at least five percent of the voting-age population speaks another language.[5]

The 1975 amendment regarding second-language materials expanded the preclearance requirement to Texas, Alaska, and Arizona, as well as several counties in six other states.[5] At the time of the Shelby County ruling, nine states were subject to the preclearance requirement in Section 5, along with 56 counties and two townships in other states.[6]

Section 5 of the act requires covered states to seek from the U.S. District Court for the District of Columbia “a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” Until declaratory judgment is issued, “no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure.”[4]

The coverage formula and preclearance requirement were originally set to expire after five years. However, Section 5 was reviewed and renewed when the Act came before Congress in 1970, 1975, 1982, and 2006.[7]

According to the majority opinion in South Carolina v. Katzenbach (1966)—the first Supreme Court case on the constitutionality of the preclearance provisions a year following its passage—“Congress had learned that substantial voting discrimination presently occurs in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future. Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.”[8]

The Supreme Court held that the extension of federal authority over certain states and jurisdictions did not violate the Tenth Amendment given the immediacy of the need and the contemporary nature of the problem.[8]

Shelby County v. Holder

Shelby County, Alabama challenged the constitutionality of Sections 4(b) and 5, asserting that the preclearance test was “facially unconstitutional,” and sought a permanent injunction prohibiting the Department of Justice from enforcing the provisions.[9] According to the suit, the preclearance provisions violated the Tenth Amendment because they no longer addressed a current need.[10] However, The D.C. District and Circuit Courts upheld both sections.[2]

On review, the Supreme Court struck down subsection 4(b) as unconstitutional, and ruled the formula can no longer be used as a basis for subjecting jurisdictions to preclearance.[2] Chief Justice John Roberts wrote the majority opinion joined by Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, and Clarence Thomas. The majority opinion stated that the Voting Rights Act, as originally written,

The majority opinion also stated that “At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted it—made sense,” but that “Coverage today is based on decades-old data and eradicated practices,” referring to the percentages of voter registration and turnout as well as the “tests and devices” outlined in subsection 4(c), including literacy and moral character tests.[2][4] Moreover, the opinion asserted that the formula is no longer justifiable because, “Nearly 50 years later, things have changed dramatically.” Voter turnout among different races is approaching parity in covered jurisdictions and the “tests and devices” described in Section 4 have been illegal for more than four decades.[2]

Roberts stated that the ruling on Section 4 did not extend to Section 5:[12]

The dissenting opinion, presented by Justice Ruth Bader Ginsburg on behalf of Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, stated that the preclearance formula should have been upheld because Congress decided in 2006 that the formula was still needed to prevent discriminatory voting laws in covered jurisdictions.[2][13]

Conclusion

During a confirmation hearing for Jeff Sessions’ Attorney General appointment, Hawaii Sen. Mazie Hirono referred to “the Supreme Court's decision that did away with major parts of the Voting Rights Act.” In Shelby County v. Holder, the Supreme Court struck down section 4(b), which prescribes the formula for determining which states and political subdivisions are subject to federal preclearance for new voting laws. The decision invalidated the formula in Section 4, which rendered Section 5 unenforceable until an updated formula is established. But it did not do away with Section 5, one of 12 major provisions of the Act.

See Also

Sources and Notes

1. ↑ C-SPAN, “Attorney General Confirmation Hearing, Day 1 Part 2,” January 10, 2017. Clip begins at 59:00.
2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 2.7 Supreme Court of the United States, Shelby County, Alabama v. Holder, Attorney General, Et Al. June 25, 2013
3. ↑ While the court stated in Shelby County v. Holder that “Section 4 of the Voting Rights Act is unconstitutional,” its ruling only affected parts of Section 4 whose enforcement depended on the formula set forth in subsection 4(b). As such, subsection 4(e) and part of subsection 4(f) (amended under Sec. 203) remain enforceable, since they prohibit forms of voting discrimination against language minorities on a national level. The United States Department of Justice, “Fact Sheet on Justice Department’s Enforcement Efforts Following Shelby County Decision,” accessed on February 2, 2017
4. ↑ 4.0 4.1 4.2 4.3 4.4 Office of the Clerk, U.S. House of Representatives, “Public Law 89-110: Voting Rights Act of 1965,” accessed January 25, 2017
5. ↑ 5.0 5.1 The United States Department of Justice, “Section 4 of the Voting Rights Act,” accessed January 25, 2017
6. ↑ The United States Department of Justice, "Jurisdictions Previously Covered by Section 5,” accessed January 25, 2017
7. ↑ The United States Department of Justice, "About Section 5 of the Voting Rights Act," accessed February 1, 2017
8. ↑ 8.0 8.1 Cornell University Law School Legal Information Institute, “South Carolina v. Katzenbach,” accessed February 1, 2017
9. ↑ United States District Court for the District of Columbia, Shelby County, Alabama, Plaintiff, Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, Defendant, "Memorandum Opinion," accessed January 27, 2017
10. ↑ American Bar Association, “Shelby County, Alabama, v. Eric H. Holder, Jr., Attorney General, Et Al., Respondents. Brief to Petitioner,” December 26, 2012
11. ↑ 11.0 11.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
12. ↑ Justice Thomas wrote a separate concurring opinion stating that Section 5 should be deemed unconstitutional as well. Office of the Clerk, U.S. House of Representatives, “Public Law 89-110: Voting Rights Act of 1965,” accessed January 25, 2017
13. ↑ The United States Department of Justice, “Voting Rights Act of 1965,” accessed January 25, 2017”