Shelby County v. Holder

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". A preclearance determination must be issued by either the United States Attorney General or a panel of three judges serving on the United States District Court for the District of Columbia. Section 4(b) specifies the "coverage formula", or criteria, used to determine which states and local jurisdictions are subject to preclearance under Section 5. A jurisdiction is covered if a prohibited "test or device" was a requirement for voting or registering to vote as of November 1964, 1968, or 1972, and less than half of the eligible voting population was registered to vote or had voted in that year's election. Section 4(a) allows covered jurisdictions to "bail out" of the preclearance requirement if they made sufficient progress in ending discriminatory voting practices. 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. 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). In 2006, Congress reauthorized Section 5 for an additional 25 years, but did not change the coverage formula from the 1975 version. ==History==

District Court 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. Arguing before Bates were Kristen Clarke, who argued that it was reasonable for Congress to "stay the course" in renewing Section 5 of the Voting Rights Act in order to root out discrimination, and Bert Rein, a lawyer for Shelby County, who argued that the environment in the country was "totally different" when Section 5 was first enacted. Court of Appeals On May 18, 2012, the U.S. Court of Appeals for the D.C. Circuit affirmed the District Court's decision 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. Supreme Court 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 for expressing his belief during oral argument that Congress reauthorized Section 5 not because the legislation was necessary, but because it constituted a "racial entitlement" that Congress was unlikely to end. A coalition of four states provided an amicus brief to the Supreme Court expressing support for Section 5 and noting that the preclearance provision did not impose a burden on them. The coalition was led by New York and included Mississippi, North Carolina and California. == Opinion of the Supreme Court ==

The Supreme Court struck down Section 4(b) as unconstitutional in a June 25, 2013 ruling. The majority opinion was delivered by Chief Justice John Roberts, joined by Justices Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. The Court held that Section 4(b) exceeded Congress' 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 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." 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 the Section 5 preclearance requirement raised, but did not reach the issue of whether Section 5 is 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. Concurrence Thomas wrote a concurring opinion expressing his view that Section 5 is also unconstitutional for the same reasons the Court held Section 4(b) unconstitutional. Dissent 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." ==Reaction==

The opinion was controversial, prompting heavy media coverage of reactions from political leaders, activists, and the legal community. Public officials 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, and 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 would ask a federal court to subject the formerly covered state of Texas to preclearance under the "bail in" provision 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 Voting Rights Act's importance over the previous 40 years and said he was reviewing the decision and trying to determine the next steps. House Majority Leader Eric Cantor expressed 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 feared the decision would allow local election officials "to go back to another period". He added: "the purpose of the Voting Rights Act is not to increase the numbers of minority voters or elected officials. That is a byproduct of its effectiveness. The purpose of the act is to stop discriminatory practices from becoming law. There are more black elected officials in Mississippi today not because attempts to discriminate against voters ceased but because the Voting Rights Act kept those attempts from becoming law." House Judiciary Committee chair Bob Goodlatte said the committee would review new voting data but that he was unsure whether it would take any 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 that the Senate would act to address the decision. Senator Bob Corker said that he "cannot imagine" Congress ever agreeing on the terms of a new coverage formula. On July 17, 2013, the Senate Judiciary Committee began to hold hearings on how to respond to the decision. Republican Senator Ted Cruz supported the ruling: "Today, the Supreme Court recognized the enormous progress made toward voting equality in the United States since the Voting Rights Act was passed in 1965. The Court rightly decided that the statutory standard used decades ago to subject democratically elected state legislatures to second-guessing by unelected federal bureaucrats no longer survives constitutional scrutiny." At the state level, Texas and Mississippi officials pledged within hours of the decision to enforce voter ID laws that the attorney general had blocked while investigating their effect on voting. Florida Secretary of State Ken Detzner said it made no sense for five Florida counties to be subject to preclearance based on decades-old voting rights data and that the decision would save the state money. New York Governor Andrew Cuomo said the decision troubled him and called upon Congress to pass a new coverage formula. Others Edward Blum, director of the Project on Fair Representation, an Alexandria-based nonprofit legal defense foundation that provided counsel to Shelby County, commented that the Supreme Court restored "a fundamental constitutional order that America's laws must apply uniformly to each state and jurisdiction. All 50 states are entitled to equal dignity and sovereignty under the law." Penda Hair, co-director of national racial justice organization Advancement Project, said, "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." Former White House Counsel Gregory B. Craig was highly critical of the decision, calling it not only "an assault on Congress" but also "the single greatest example of legislating from the bench in my lifetime". Roberts wrote that the registration gap between blacks and whites had shrunk dramatically in southern states since the Voting Rights Act of 1965, and questioned why six southern states were subject to stringent oversight. ==Impact==

As reported by the New York Times, the United States has a long history of limiting access to voting. It began during the Founding Fathers' era and reached a peak during the Jim Crow era. The idea that disenfranchising legitimate voters was unethical gained momentum after the Civil rights movement and the passage of the Voting Rights Act in 1965, but came to a halt almost "two decades after the Bush v. Gore stalemate", which "led to voting rules being viewed as key elements of election strategy ... the issue is playing an extraordinary role in the midterm elections." The New York Times observed in 2018 that the aforementioned restrictions on registering and voting "reflect rising partisanship, societal shifts producing a more diverse America, and the weakening of the Voting Rights Act by the Supreme Court in 2013." have passed laws that removed provisions such as online voting registration, early voting, "Souls to the Polls" Sunday voting, in which shuttle services take people to the polls directly after church, same-day registration, and pre-registering people under the age of 18 to vote. 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 and some that were not, including Alabama, Arizona, Arkansas, North Carolina, Ohio, Wisconsin and Texas. According to the Brennan Center for Justice, the states most likely to enact voting restrictions were states with the highest African-American turnout in the 2008 election. A 2020 study found that jurisdictions that had previously been covered by preclearance substantially increased their voter registration purges after Shelby. Virtually all voting restrictions after the ruling were enacted by Republicans. Three years after the ruling, 868 U.S. polling places had closed. Five years after the ruling, nearly 1,000 polling places had closed, many of them in predominantly African-American counties. Research shows that changing and reducing voter locations can reduce voter turnout. Journalist Vann R. Newkirk II asserted in July 2018 that in Shelby County v. Holder and the 2018 decisions Husted v. Randolph Institute and Abbott v. Perez, the Roberts Court has "set the stage for a new era of white hegemony", because these cases "furthered Roberts's mandate to distance the federal judiciary from Thurgood Marshall's vision of those bodies as active watchdogs for the Fourteenth and arbiters for America's racial injustices." According to Newkirk, with these three cases "the Court has established that not only are the legacies of Jim Crow no longer a valid justification for proactive restrictions on states, but the Court doesn't necessarily have a role in advancing the spirit of the franchise. Furthermore, with Alito's gerrymandering decision, the Court holds that past discrimination by states—even at its boldest and most naked—is not really a consideration in assessments of current policies. This part is crucial, because in an era where crafty state politicians have moved toward race-neutral language that clearly still seeks to disenfranchise people of color, a certain default suspicion by federal courts and the Department of Justice based on those state politicians' histories has been the main protective force for the minorities' voting rights. That suspicion is gone now, as are all vestiges of Marshall's intended vigilance. The full text of the Voting Rights Act may or may not be in danger depending on the nature of the challenges that arise for the next generation of justices, but the damage has already been done. If the act represented a commitment by the federal government to ensure the true fulfillment of the Fourteenth Amendment's right to due process and the Fifteenth Amendment's erasure of race-based disenfranchisement, then Roberts's Court has all but dismantled that commitment." Voting restrictions and new requirements in the voting process include "strict photo ID requirements, limitations on who can provide assistance at polling places, the curbing of early voting days, and the closing of hundreds of polling places across the US. Other measures, like the purging of voters from state voter rolls and drawing election districts in a way that curbs the power of voters of color, have affected how much power communities of color hold in elections." The Brennan Center for Justice argues that automatic voter registration does not only "increase registration rates, clean up the voter rolls, and save states money", but is also "a new way forward that can help to open access to the franchise and improve American democracy. Particularly at a time when many states have enacted restrictive voting laws and voter turnout has hit record lows". Research is mixed as to whether voter ID requirements suppress turnout, with many studies finding that they reduce minority participation, and others finding no impact. A 2020 study found that the jurisdictions that had previously been covered by preclearance substantially increased the rate of voter registration purges after the Shelby decision. The Brennan Center reported, "In 2020, if the gap had not existed, 9 million more ballots would have been cast—far more than the 7 million by which Joe Biden won the national popular vote. In 32 states, the number of 'uncast' ballots due to the turnout gap was larger than the winning presidential candidate's margin of votes." Alabama After Shelby, Alabama Republicans drew a new legislative apportionment map of the state that some, such as federal judge Myron Herbert Thompson, contended was 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. North Carolina Shortly after the Shelby ruling, North Carolina Governor 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 those about to turn 18, while also enacting a voter ID law. Opponents criticized the law as adversely affecting minority voters. The law was challenged on behalf of the North Carolina State Conference of the NAACP in a suit 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 and 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. North Dakota On October 10, 2018, the United States Court of Appeals for the Eighth Circuit upheld an act of North Dakota that requires voters to have an ID with their name, street address, and date of birth. At the time the state's Native reservations did not generally have street addresses, only post boxes for residents; there was concern that this provision would disproportionately affect Native voting and speculation that it was drafted with that as a primary goal. Dissenting Justices Ginsburg and Kagan wrote, "The risk of voter confusion appears severe here because the injunction against requiring residential-address identification was in force during the primary election and because the Secretary of State's website announced for months the ID requirements as they existed under that injunction." Ohio 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 ballot applications to all registered voters. Under the new law, Ohio's secretary of state would have to get lawmaker approval to mail these absentee ballot applications. Texas 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 they 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 that establishes the voter's identity (which may be a foreign birth document). 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. 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. Wisconsin 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. In March 2015, the Supreme Court declined to take up the case, allowing the law to go into effect. == Legislative responses ==

On January 16, 2014, a bipartisan group of members of Congress, consisting of Representatives Jim Sensenbrenner and John Conyers and Senator Patrick Leahy, introduced H.R.3899/S.1945, 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 after Shelby County v. Holder. • 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 Voting Rights Amendment Act of 2014 was in limbo because there was no widespread support for amending the Voting Rights Act as it was by its reauthorization in 2006. The House and Senate versions of the bill died in their respective Judiciary Committees. The House introduced the Voting Rights Amendment Act of 2015 the next year. It was referred to the House Judiciary Committee on the day it was introduced, but did not 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 were 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 voters who speak a language other than English; and expansion of opportunities for voting registration and for early in-person voting. According to congressional Democrats, Shelby County v. Holder gave states more leeway to pass even more restrictive voting laws. In February 2019, congressional Democrats therefore introduced the Voting Rights Advancement Act of 2019 (H.R. 4 in the 116th Congress), Alabama, California, Florida, Georgia, Louisiana, Mississippi, New York, North Carolina, South Carolina, Texas, and Virginia were predicted to be covered by the act. U.S. Senator Patrick Leahy added:In the wake of Shelby County—which gutted Section 5 of the Voting Right Acts and consequently crippled the federal government's ability to prevent discriminatory changes to state voting laws—states have unleashed this torrent of voter suppression schemes. Because of a single, misguided, 5 to 4 decision, the federal government can no longer effectively serve as a shield against disenfranchisement operations targeting minorities and the disadvantaged across the country. The proliferation of threats to the right to vote in the wake of Shelby County makes it unmistakably clear why we need the full protections of the Voting Rights Act. That is why I am introducing the Voting Rights Advancement Act of 2019 to restore Section 5 of the Voting Rights Act, improve and modernize that landmark legislation, and provide the federal government with other critical tools to combat this full-fledged assault on the franchise. Senator Mitch McConnell later called the proposed bill "the Democrat Politician Protection Act". Despite several attempts that have included passage in the House of Representatives, the bill has never been passed and signed into law. ==See also==