The Thicket at State Legislatures

Supreme Court Accepts Abandoned Railroad Right-of-Way Case

By Lisa Soronen

Every year before the Supreme Court’s term officially begins on the first Monday in October the Court holds its “long conference,” during which the justices consider which cases to hear among the approximately 2,000 cert petitions that have accumulated over the summer. On Oct. 1, the Court accepted eight of those cases, one of which the State and Local Legal Center (SLLC) will file an amicus brief.

In Marvin M. Brandt Revocable Trust v. United States, the Court will decide who owns an abandoned railroad right-of-way: the United States or a private land owner living next to the right-of-way. In 1875, Congress passed a law granting rights-of-way to railroads through public land. Over the course of the next century, as trucking became a more popular method of transport, numerous railroads abandoned these rights-of-law. 

The government argues that a 1922 federal statute allows the United States to retain the railroad right-of-way if it is abandoned. If that is the case, and the abandoned right-of-way is located in a municipality, the municipality automatically receives it from the federal government for free. If the abandoned right-of-way is located elsewhere, a state or local government receives it for free if it establishes a “public highway” on the right-of-way within one year. State and local governments typically convert abandoned railroad rights-of-way into “Rails-to-Trails.”

State and local governments often own and maintain abandoned railroad rights-of-way. The Supreme Court usually takes cases where at least two federal circuit courts of appeals have ruled differently on the same issue. In Marvin M. Brandt Revocable Trust v. United States, the Tenth Circuit ruled in favor of the United States. In a similar case, Samuel C. Johnson 1988 Trust v. Bayfield County, Wisconsin, the Seventh Circuit ruled against Bayfield County, who intended to build snowmobile trials on the abandoned railroad right-of-way. 

Learn more about cases from this term affecting state government at the SLLC Supreme Court Preview webinar on October 22.  Registration is free.     

Lisa Soronen is the executive director of the State and Local Legal Center in Washington, D.C.

Legislative Chaplains in the News

U.S. Senate Chaplain Barry C. Black. Credit: Drew Angerer, New York Times

By Karl Kurtz

Legislative chaplains seldom make news. Today's New York Times features not one, but two, stories about prayers in legislatures. The first is an engaging profile, "Give Us This Day, Our Daily Senate Scolding," about Barry C. Black, the chaplain of the U.S. Senate. A Seventh Day Adventist and former Navy rear admiral, Black recently prayed in the midst of the government shutdown:

Save us from the madness.... We acknowledge our transgressions, our shortcomings, our smugness, our selfishness and our pride. Deliver us from the hypocrisy of attempting to sound reasonable while being unreasonable.

Black, who has been the Senate chaplain for 10 years, comments about his role, "Remember, my prayer is the first thing they hear every day. I have the opportunity, really, to frame the day in a special way."

The second story is about Town of Greece v. Galloway, the case of a small town New York board meeting that starts each session with a prayer by a chaplain that is before the new term of the U.S. Supreme Court. Some residents of Greece are offended that the "chaplain of the month" is almost always a Christian and say that the practice violates the Constitution's prohibition against establishment of religion by government. The precedent in this case involves a 1983 decision, Marsh v. Chambers, in which the Court, overruling several lower court decisions, ruled that the Nebraska Legislature had the right to hire a chaplain and open legislative sessions with a prayer because such ceremonies were "deeply embedded in the history and tradition of this country."

Nebraska Sen. Ernie Chambers

Ernie Chambers, the legendary and long-sitting (1971-2009) member of the Nebraska Senate who originally brought the case challenging the Senate's prayers, returned to the Senate in 2013 after sitting out for four years in accordance with Nebraska's legislative term limit requirement.

Legal experts say gay rights new civil rights

By Mary Winter

Recent landmark rulings by the U.S. Supreme Court hint that, in the judicial sphere, gay rights may be the new civil rights, two legal experts told a gathering of state legislators Wednesday.

Lisa Soronen, executive director of the State and Local Legal Center in Washington, D.C., and Brian Johnson, deputy director of Senate research for the Georgia General Assembly, discussed four Supreme Court decisions affecting the 1965 Voting Rights Act, a University of Texas affirmative action case, the federal Defense of Marriage Act, and California’s Proposition 8. 

Soronen’s organization helps state and local governments with litigation before the U.S. Supreme Court. Since 1983 the SLLC has filed more than 300 amicus briefs in the Supreme Court.

Representative Tommy Reynolds of Mississippi introduced Soronen and Johnson at a session entitled “Supreme Court Key Cases” at the National Conference of State Legislatures’ annual Legislative Summit at the Georgia World Congress Center.

The court expanded gay rights in two separate rulings. In the United States v. Windsor, the court struck down a part of the federal Defense of Marriage Act that prevented same-sex couples from filing joint federal tax returns or from covering their spouses on their health care plans. The court said the provision was unconstitutional because it stepped on states’ rights and it denied gays equal rights. In the second case involving gays, the court dismissed a suit challenging an earlier ruling on California’s Proposition 8, in effect upholding that court’s ruling that the Constitution’s 14^th Amendment guarantees gays the right to marry.

 “Are gay rights the same as civil rights? That’s the big new question,” said Johnson. Expect courts to examine gay rights in light of the 14^th Amendment, the Reconstruction Era legislation that gave former slaves citizenship and equal protection rights, he said.  Johnson predicted “deep conversations” and debates will take place around the issue. States will also have to decide how they will allocate federal benefits such as Temporary Assistance to Needy Families to gay couples, he said.

SLLC’s  Soronen focused more on the court’s decision to strike down a key part of the 1965 Voting Rights Act requiring states with histories of discrimination to get federal permission before changing election laws. In explaining the 5-4 decision, Chief Justice John Roberts said the provision was outdated and violated state sovereignty.

Soronen said Associate Justice Ruth Bader Ginsburg delivered a “beautiful and intelligent” dissent from the bench, alluding to “shameful” current examples of voter discrimination in some states, including one in which a city council simply cancelled an election when an African-American slate decided to run.

Soronen called the Voting Rights Act ruling “the beginning of something huge and new.”  She predicted the country will see more lawsuits alleging voter discrimination and quicker response from the U.S. Department of Justice when states decide to implement new rules such as voter ID requirements, as Texas recently did.

The Fisher v. the University of Texas at Austin case involved a white student who applied for admission based on the state’s affirmative action law. When she was denied, she sued, claiming the school’s use of race in admissions decisions violated the Equal Protection clause of the 14^th Amendment. The Supreme Court remanded the case back to a lower court, but Soronen believes that in the future, affirmative action cases will be harder to win and that the recent decision was “a victory for those who want to take race out of the equation.”

The court’s recent path, she said, has some people wondering “if we’re seeing the end of the race-focused civil rights movement.”

Sandra Day O'Connor Tells NCSL Legislative Summit Money Poses Biggest Risk to Fair Courts

By Mary Winter

ATLANTA – The first woman to serve on the U.S. Supreme Court told legislators from across the nation Monday she is promoting two causes: getting money and politics out of judicial elections and getting civics education back into schools.

Sandra Day O’Connor, who served 24 years on the High Court before retiring in 2006, was keynote speaker on the second day of the National Conference of State Legislatures’ 2013 Legislative Summit here. Some 5,000 attendees are at the World Congress Center for the five-day conference.

The best judges, O’Connor said, follow the rule of law, not what they think the law should be. “And they constantly disappoint at least half the people who come to court,” she said.  But good judges are willing to disappoint people all the time, she said, because it’s a requirement of being impartial and refusing to bow to political pressures.

But in 22 states, she said, contested elections are used to choose state supreme court judges, which means candidates must raise campaign funds. From 2000-2009, some $207 million went into judicial campaigns in the United States, O’Connor said. And in 2010, $4.5 million was spent on judicial retention elections in just four states.

“Money presents the greatest risk to fair courts. Money creates the impression, rightly or wrongly, that judges are accountable to money and politics, not the law,” she said.

The best alternative to elections, she said, is merit selection of judges. O’Connor said that when she served as an Arizona state Senator in the early 1970s, the legislature adopted a merit selection system, approved by voters, that set up a commission to pick judges. It has its own flaws, O’Connor said, but “it’s still better than the alternative.”

NCSL President Terie Norelli introduced the trailblazing justice as the author of five books and winner of the Presidential Medal of Freedom in 2009.

O’Connor, appointed to the court by President Ronald Reagan in 1981, was considered a conservative moderate who was often was the swing vote on the panel. In 1971, she famously voted to uphold the controversial Roe v. Wade decision on abortion rights. Her vote also broke the tie on Bush v. Gore in 2000, which upheld the original certification of Florida’s electoral vote and gave Bush the presidency.

On Monday, O’Connor criticized the current state of civic awareness in America, citing a recent study that showed two-thirds of the public knows the name of at least one judge on the TV show, “American Idol,” but only 15 percent can name the chief justice of the U.S. Supreme Court.

It’s among the reasons “why we must bring meaningful civic education back to schools.” Toward that end, she said she has spent a great deal of her time promoting icivics.org, a free website for children and young adults that’s heavy on games about how government works. O’Connor said it’s being used in 50,000 classrooms in all states.

Children need to learn the rights and responsibilities of citizenship, she said, “so we know who we are as a people and how we have impact on issues we care about.”

States that Require a Constitutional Amendment to Pass Photo Voter ID

By Karen Shanton

Credit: examiner.com

In response to my recent post on state constitutional challenges to voter ID laws, ElectionSmith's Dan Smith raised an interesting question: Which states would require a constitutional amendment to enact a photo voter ID requirement? 

The answer to this question depends a bit on what we mean by 'require.' Consider the following pair of cases:

• In 2006, the Missouri General Assembly passed a photo voter ID law but the state Supreme Court struck it down as unconstitutional. The General Assembly tried (ultimately unsuccessfully) to supersede this ruling by putting a photo ID requirement on the ballot as a constitutional amendment.
• In 2011, the Minnesota Legislature passed a photo voter ID bill but Governor Mark Dayton vetoed it. In an (ultimately unsuccessful) effort to sidestep the veto, the Legislature sent the ID requirement to the 2012 ballot as a constitutional amendment.

Arguably, both of these are cases in which a constitutional amendment would be required to enact a photo ID requirement. After all, in both, the route to enacting the requirement as a statute is blocked.

However, the nature of the obstacle in each case is different. In Missouri, the obstacle is legal. Once Missouri's ID requirement was found unconstitutional, it couldn't be enacted as a statute (at least, not in its existing form); the General Assembly couldn't simply re-pass the same bill. Even if the governor and legislature both overwhelmingly favored the ID requirement, they couldn't enact it without a change to the state constitution.

In Minnesota, on the other hand, the obstacle is political. The 2012 voter ID amendment was an effort to clear the political hurdle of the governor's veto. If ID supporters in the Legislature had had the numbers to override the veto (or the governor had changed his mind), the subject of a constitutional amendment might never have come up.

So, there are a couple of ways to interpret the question we started with. One is as a question about legal necessity: Which states would legally require a constitutional amendment to enact a photo voter ID amendment? As of this writing, Missouri is the only state that has struck down a photo voter ID requirement under the state constitution in a court of final jurisdiction. But state constitutional challenges to ID laws are pending in Kansas, Pennsylvania, Tennessee and Wisconsin (1,2). If any of these challenges succeeds, an amendment will presumably be legally required for the state to enact the challenged requirement. And the state will join Missouri on the list of answers to the first question.

Another way to read the question is as a question about political necessity: Which states would politically require a constitutional amendment to enact a photo voter ID amendment? Here, the answer isn't quite as easy to pin down. Political obstacles can come and go with shifts in the political landscape–and the political necessity of a constitutional amendment can come and go with them. Take, for example, the case of North Carolina. Former North Carolina Governor Bev Perdue vetoed an ID bill when she was in office. Her successor, Governor Pat McCrory, on the other hand, supports photo voter ID and is expected to sign an ID bill if it reaches his desk. The changeover in the North Carolina governor's mansion likely eliminated the veto threat to the photo ID requirement and, with it, the political need for an amendment.

Similar changes–or even just changes of heart–in the governor's mansion or legislature could similarly eliminate (or create) political obstacles to photo ID in other states. So, unlike the answer to the first, legal version of the question, the answer to this second, political version depends pretty directly on turns in the political tides.

Federal Law and Family Drama in Adoptive Couple v. Baby Girl

By Victor Kessler

A man and woman fall in love. They get engaged and start planning their wedding. The woman discovers she’s pregnant; she tells her fiancée, but it tears apart their relationship. He won’t support her financially until after the wedding, she breaks up with him. Months later, she texts him asking for child support for their daughter. He texts back that he would rather give up his parental rights instead.

Poor and alone, the soon-to-be mother looks into adoption. She meets a nice couple from South Carolina who agree to take care of the baby girl. They support the mother during her pregnancy and are in the delivery room when the time comes. The adoptive father even cuts the umbilical cord. For four months, the couple looks after the baby, allowing the mother to visit her child whenever she likes. Then the biological father returns, looking to take custody of his daughter. A court battle ensues, and at the age of two the little girl meets her dad for the first time after the family court awards him custody. The case makes it all the way up to the Supreme Court.

It may sound like a soap opera, but Adoptive Couple v. Baby Girl is a real-life drama with serious implications for the family and thousands like them nationwide. The legal issue before the Court revolves around the Indian Child Welfare Act of 1978 (ICWA), which Congress passed to combat abusive child welfare practices that were forcibly breaking up Indian families and placing the children into foster care in non-Indian homes. The ICWA sets higher standards for terminating the rights of an Indian parent than states typically require under their own domestic laws. Because the father in this case is a member of the Cherokee Tribe, he was able to contest the adoption under the ICWA. The South Carolina Supreme Court ruled that the federal law applied and affirmed the family court’s award of custody to the father. But for the application of the ICWA, the adoption would have likely gone through and the little girl would have stayed with her adoptive parents.

The Supreme Court, in an opinion authored by Justice Alito, overturned South Carolina’s ruling. According to the Court, the ICWA was designed to prevent the removal of an Indian child from her family, not to create rights in a parent who had never had legal or physical custody of a child. Likewise, the majority decided that a provision of the ICWA requiring that efforts be made “to prevent the breakup of the Indian family” before terminating parental rights does not apply where the “breakup” happened long before the child’s birth. Justice Alito argued that it would be “unusual” to give custody to a father who had abandoned his child before her birth just because he happened to be an Indian, when state law would normally side with the mother and the adoptive parents. The dissenters express concern that the ruling will adversely affect all Indian parents who have never had formal custody of their children, even those who are involved in their offspring’s lives and who provide financial support to their families.

Ultimately, this case restricts the operation of the ICWA, a federal statute that sets a uniform standard to govern adoptions of Indian children nationwide. The Court’s ruling swaps out national uniform treatment of Indian parents under the ICWA for uniform treatment of non-custodial parents, Indian and non-Indian alike, under state law. While the federal government typically has jurisdiction over Indian affairs, this tips the scales back towards the states in an area where they have traditionally exercised almost exclusive authority, family law and the regulation of domestic life. As for the little girl, she’ll stay with her biological father while the South Carolina Supreme Court hears the case one more time.

Victor Kessler is the Legal Intern at the State and Local Legal Center in Washington, D.C.

 

Supreme Court Decides Takings Case

By Lisa Soronen

In a bright media glare during its last week in session at the end of June, the Supreme Court issued rulings in two same-sex marriage cases, struck down Section 4 of the Voting Rights Act, and issued a ruling regarding affirmative action in universities.  More in the shadows, the Supreme Court also issued its third ruling of the term involving takings.  The State and Local Legal Center (SLLC) filed an amicus brief, which NCSL signed onto, in this case.     

In Koontz v. St. Johns River Water Management District the Supreme Court held 5-4 that there must be a “nexus” and “rough proportionality” between the government’s conditions for issuing a land-use permit and the effects of the proposed development, even when the government denies the permit and the demand is for money. 

Mr. Koontz sought permits to develop a portion of wetlands that he owned in Florida.  St. Johns River Water Management District told Koontz he could proceed with the development if he would reduce its impact or, alternatively, pay for improvements on District-owned property several miles away.  Koontz refused, was denied a permit, and sued, claiming his property was taken without just compensation. 

In two previous Supreme Court cases, Nollan and Dolan, the Court held that the government may condition approval of a permit on the dedication of property to the public as long as there is a “nexus” and “rough proportionality” between the property demanded and the social cost of the applicant’s proposal.  The Florida Supreme Court did not apply Nollan and Dolan for two reasons.  First, the District had denied the application because Koontz refused to make a concession rather than issuing the permit subject to conditions, and so had not “taken” anything.  Second, the District requested money instead of an interest in land. 

The Supreme Court reversed the Florida Supreme Court and applied Nollan and Dolan to both permit denials and demands for money.  All nine Justices agreed that Nollan and Dolan should apply whether or not the permit is ultimately issued.   According to the Court, Nollan and Dolan reflect the reality that the government may abuse the permitting process to coerce people into giving up land by denying a permit worth far more than the property the government wants to take.  At the same time, land uses can impose social costs that land dedications can offset.  Five Justices agreed that Nollan and Dolan should apply to monetary conditions to avoid the government demanding “extortionate” amounts of money in exchange for a permit.  The dissenting Justices were sympathetic to the argument in the SLLC’s amicus brief that there is no principled way to distinguish between demands for money in the land use context and taxes.

In a New York Times Op-Ed SLLC brief writer and University of Vermont law Prof. John Echeverria writes that this case “creates a perverse incentive for municipal governments to reject applications from developers rather than attempt to negotiate project designs that might advance both public and private goals — and it makes it hard for communities to get property owners to pay to mitigate any environmental damage they may cause.”

Lisa Soronen is the executive director of the State and Local Legal Center in Washington, D.C.

Voter ID in the States: Possible Obstacles Post-Shelby

By Karen Shanton

Within hours of the U.S. Supreme Court’s ruling in Shelby County v. Holder, five states that were previously covered (in part or in full) by Section 5 of the Voting Rights Act (VRA) announced plans to proceed with pending voter ID legislation.

In North Carolina, the chair of the Senate Rules Committee said that his chamber would take up an ID bill this week. Officials in Alabama, Mississippi, Texas and Virginia indicated that they would move forward with implementing pending ID laws. (Another former Section 5 state, South Carolina, had already had its new voter ID law precleared for 2013 before the Court handed down its ruling.)

However, the path to voter ID in these states might not be completely clear. The Court struck down Section 4’s coverage formula in Shelby but left the rest of the VRA intact. That leaves at least three scenarios in which the VRA could continue to pose an obstacle to ID laws:

1. The U.S. Congress revisits Section 4: Though political observers consider it unlikely, Congress could revise the coverage formula in Section 4 to address the Court’s concerns. Because Section 5 was not directly affected by the Court’s ruling, jurisdictions covered by the newly-revised formula would be subject to its preclearance requirement.
2. Action is brought under Section 2: Section 2 of the VRA, which applies to all states, is a general prohibition on discriminatory voting practices and procedures. As has already happened in Texas, ID opponents could bring challenges to voter ID legislation under Section 2.
3. Jurisdictions are ‘bailed in’ under Section 3: Under Section 3 of the VRA, jurisdictions that are found to violate the Fourteenth or Fifteenth Amendment of the U.S. Constitution can be ‘bailed in’ to federal oversight. Once bailed in, a jurisdiction must seek preclearance for specified types of election law changes until a specified sunset date.

There’s also another possible obstacle to ID laws: the state constitution.

State constitutions typically have equal protection and due process clauses that parallel clauses in the Fourteenth Amendment of the U.S. Constitution. Many also provide robust protections for the franchise, up to and including an affirmative guarantee of the right to vote.

These types of provisions have formed the basis for legal scrutiny of voter ID laws in eight states (Georgia, Indiana, Kansas, Michigan, Missouri, Pennsylvania, Tennessee and Wisconsin 1, 2) – and could prompt similar suits in some of the former Section 5 states.

The prospects for such challenges depend on a number of variables, including the:

• Wording of the state constitution: A state constitutional challenge based on the right to vote succeeded in Missouri, where the constitution explicitly guards the franchise, but was rejected in Michigan, which offers more indirect protection of political rights. As this suggests, state constitutional challenges will fare better in states with robust constitutional guarantees of equal protection under the law, due process and/or suffrage than states with weaker constitutional safeguards.
• State courts’ approach to constitutional analysis: State courts have three options for interpreting constitutional provisions about individual rights: (1) a lockstep approach that yokes state law to federal law, (2) a primacy approach that prioritizes state law and (3) an interstitial approach that starts with federal law then checks state law for more expansive protections. Given the U.S. Supreme Court’s 2008 ruling upholding Indiana’s voter ID law (Crawford v. Marion County Election Board) and the fact that state-level protections for the franchise are often more robust than federal protections, state constitutional challenges to voter ID laws face better odds in courts that take a primacy or interstitial approach.
• Details of the challenged ID law: Some ID laws count expired IDs as acceptable voter identification while others accept only valid IDs. Some permit voters to provide affidavits attesting to their identity instead of an ID card while others don’t. Laws with greater flexibility are more likely than restrictive laws to survive legal scrutiny.
• Evidence for a constitutional violation: At the end of May, a Wisconsin appellate court lifted a lower court’s injunction on the state’s voter ID law. However, the court hinted that the outcome might have been different if the plaintiffs had made a more persuasive case that the law would be unreasonably burdensome. This illustrates the important, if unsurprising, point that a strong evidential record will bolster plaintiffs’ chances.

The right combination of these variables has to be in place for a state constitutional challenge to win out so state constitutional suits are far from guaranteed to succeed. Still, they provide ID opponents with an additional possible avenue for action–and ID supporters with another possible obstacle. So, as they map out their moves post-Shelby, strategists on both sides of this debate may want to take a closer look at their state constitutions.

Karen Shanton is a legislative studies specialist at NCSL and a public fellow of the American Council of Learned Societies.

The States, SCOTUS, and Same-Sex Marriage

By Victor Kessler

The U.S. Supreme Court's decisions on two same-sex marriage cases are rightfully seen by both supporters and opponents as part of a larger debate on the future of same-sex marriage in this country. These cases also reveal a split among the Justices about the federalism implications of the issue and the proper forum for this historic debate.

United States v. Windsor, which struck down the Defense of Marriage Act (DOMA), though nominally decided as an Equal Protection case under the Fifth Amendment, discusses the role of state authority over marriage as a matter “of central relevance” to the ruling. Justice Kennedy’s majority opinion hammers in the traditional deference the federal government has typically shown towards state definitions of marriage. States had always determined who was or could be legally married for the purposes of their own and, with few exceptions until DOMA, federal benefits and programs. DOMA not only redefined marriage for federal purposes, it intruded into an area of traditional state authority and snatched away rights that states had granted to their citizens.

By extending federal benefits to all married couples, Windsor has been hailed as a victory for proponents of same-sex marriage. But in the Court’s reasoning, same-sex marriage is only protected insofar as states choose to support it. If Windsor’s logic prevails, the states, not Congress or the federal courts, will be the primary forum for debate over same-sex marriage in upcoming years.

Hollingsworth v. Perry is more unusual. Chief Justice Roberts, writing for an odd lineup of Justices Scalia, Ginsburg, Breyer, and Kagan, found that the challengers to a federal district court’s decision that invalidated California’s Proposition 8, which banned same-sex marriage, lacked standing to appeal. Normally, a state government will defend its own laws from challenges in the courts. However, state officials declined to defend the ballot initiative outlawing same-sex marriage in the Golden State, so the California Supreme Court unanimously decided that the bill’s citizen sponsors could represent the state’s interest in litigation. The Supreme Court disagreed, holding that the sponsors had no special interest in defending the legislation beyond that of an ordinary citizen, which was insufficient to create a “case” or “controversy” that the high court could hear.

The dissent, written by Justice Kennedy, admonished the majority for ignoring California’s interpretation of its own laws. The point of a ballot initiative system is to allow ordinary citizens to bypass officials with whom they disagree. The California Supreme Court understood that and was not willing to give politicians the backdoor veto of neglecting to defend voter-sponsored initiatives in court. The dissent argued that the state should determine who could or could not represent its interests and that the majority’s ruling undermined a basic principle of state sovereignty in order to avoid a political issue. The dissenting justices would have accepted California’s decision on standing and ruled on the case’s merits. Perry may lead to trouble for ballot-initiative systems in the future, though it will likely be limited to the unusual circumstance where not a single state official is willing to defend a voter-sponsored law.

The cases send mixed messages on federalism. On the one hand, Windsor suggests that the Court will champion state choices with respect to same-sex marriage over federal interference, a line of reasoning that may tip the scales against future judicial efforts to rule on the constitutionality of state decisions, as the Chief Justice points out in his dissent. On the other, Perry lets stand a federal judge’s order declaring a citizen-backed ban on same-sex marriage unconstitutional and contradicts the California Supreme Court’s ruling on state election law. What the two cases have in common is that both push responsibility for ultimately deciding the issue away from the Supreme Court, in Windsor to the states and in Perry back down to the federal trial court. In light of these decisions, only one thing is certain: in the same-sex marriage debate, it will still be up to the states to make the first moves.

For further reading on the same-sex marriage cases and federalism, SCOTUSblog offers an in-depth look.

Victor Kessler is a Legal Intern at the State and Local Legal Center

Supreme Court Ruling on Voting Rights Act Explained: Shelby County v. Holder

By Susan Parnas Frederick

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.