The U.S. Supreme Court handed down a 5-4 decision in the closely-watched Voting Rights Act (VRA) case of Shelby v. Holder on Tuesday.
Chief Justice Roberts was joined by Justices Scalia, Kennedy, Thomas and Alito to rule that Section 4 of the VRA is unconstitutional. Justice Ginsberg led the dissent and was joined by Justices Breyer, Sotomayor and Kagan. The Court did not rule on the constitutionality of Section 5 of the VRA.
Section 4 of the VRA defines which jurisdictions are to be covered under the VRA based on two main criteria: (1) whether the jurisdiction uses discriminatory tests as a prerequisite to voting, and (2) whether it has low voter registration and turnout rates. If a jurisdiction exhibits both criteria, it is covered under Section 5 of the VRA. This section requires covered jurisdictions to submit to the federal government (either the U.S. Department of Justice, Office of Civil Rights, or to a three judge panel in federal court) any proposed changes to its voting laws or procedures for “preclearance.”
The Court acknowledged that voter discrimination unquestionably still exists in the United States, but determined that the criteria under VRA Section 4, virtually unchanged since the 1960s, is no longer appropriate today. In reaching this conclusion, the Court noted that at the time of enactment, the VRA was intended to be temporary in nature and was set to expire after five years, but was reauthorized for longer periods of time.
The Court then stated that since the date of enactment, the nation has made great strides in eliminating discriminatory practices at the polling place. The Court pointed out that Congress could have used this positive data during any of the VRA’s reauthorizations to modify the coverage provisions of Section 4 to reflect current conditions, but did not do so.
The Court also focused on the fact that the VRA is an extraordinary piece of legislation with great federalism implications because it takes away the notion of equal sovereignty for states. Some states can pass laws immediately while covered states can only pass the same law by obtaining Section 5 preclearance. The Court concluded that the federalism impact coupled with Congress’ inaction in revising the standards in the VRA’s Section 4 for preclearance required it to strike down Section 4 as unconstitutional. The Court invited Congress to re-draft Section 4 based on current conditions.
Susan Parnas Frederick is Senior Federal Affairs Counsel for NCSL and works in NCSL’s Washington, D.C. office.