Last month in Shelby County v. Holder, the Supreme Court struck down a key provision of the Voting Rights Act of 1965, a law created to counter discriminatory voting laws. At the time, Congress was concerned that it would be easy for jurisdictions to pass new laws or regulations that were facially neutral but that had a discriminatory effect. As a result, Congress included Section 5 of the VRA, which required certain jurisdictions, mostly in the South, to “preclear” any voting changes with either the U.S. Department of Justice or with a special court in Washington, D.C. When originally passed, this provision was set to expire in five years, but it has been repeatedly renewed, most recently in 2006 for an additional 25 years. Section 4 of the Act sets forth the “coverage formula” for Section 5. The coverage formula has not been updated since the 1970s.
In this Term’s big voting rights case, Shelby County of Alabama challenged these provisions. In a 5-4 decision, the Supreme Court overturned Section 4 on the grounds that the Section 4 formula is unconstitutional. The Court’s opinion leaves it up to Congress to write a new formula.
With a highly polarized Congress unable to come to an agreement on even much less controversial matters, many believe that the Voting Rights Act’s preclearance requirement is unlikely to be revived. In addition, any new coverage formula would almost certainly be challenged as not meeting the Court’s objections in Shelby County. Nonetheless, many congressional leaders have expressed great concern for minority voters and have pledged to amend the Act. In the first official piece of business on the matter, the Senate Judiciary Committee set a hearing date for July 17 to consider a legislative response. The House Judiciary Committee set a hearing for July 18.
In the meantime, this area of law will not languish for lack of attention. Several of the states that were previously covered have begun moving ahead with voter ID laws, some of which had already been rejected under the Act. Texas enacted an immediate and strict voter ID law (that was rejected by a court in 2012) within a few hours of the decision. Other mechanisms exist for challenges to such laws, including Section 2 of the Act, which simply outlaws discriminatory voting practices.
Moreover, until a new formula is drafted and enacted, there are still ways for voters to challenge potentially discriminatory measures before they are enacted. Section 3 of the Act lets courts decide that a state or county needs preclearance for future laws based on recent events. So if a court finds that a jurisdiction’s new voting laws will disenfranchise minority voters, they can bring that jurisdiction back under federal review to prevent future potentially damaging measures from ever becoming law. Plaintiffs in Texas have already asked for this remedy.
Section 3 does require a high standard of proof, though. With the Section 4 formula, challengers only needed to prove that election law changes would have an adverse effect on minority voters. Challenging a law under Section 3 requires confirming that officials intended to discriminate – a much harder thing to prove.
The future of the Voting Rights Act remains uncertain. Stay tuned to ISCOTUSnow to keep up with its course.