In Shelby County v. Holder, the 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. The South has changed, SCOTUS said, and the rules have, too. The way the federal government intervenes in voting law will have to change massively as a result.
Shelby County, Alabama, challenged Section 5 of the Voting Rights Act of 1965, which requires that states and counties with a history of trying to block minorities (i.e. most of the South) from voting get pre-clearance from the Justice Department to change any voting laws — anything from the requirements to register to vote, to the location of a polling station.
In Shelby County v. Holder, the Supreme Court sought to determine 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 Constitution.
The decision was 5-4.
SCOTUS ruled that Section 4 — the formula that determines which specific locations Section 5 applies to — is unconstitutional in light of current conditions.
The 5-4 ruling, authored by Chief Justice John Roberts and joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, found that “things have changed dramatically” in the south nearly 50 years after the Voting Rights Act was signed.
In 1966, the formula was rational in both practice and theory.
The court makes clear that: "Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions." Clarence Thomas, in a concurring opinion, noted that he would have found Section 5 unconstitutional as well.
In Justice Ginsburg's dissent, she says: "In the Court's view, the very success of Section 5 of the Voting Rights Act demands its dormancy."
Ginsburg read the dissent aloud from the bench, a rare occurrence at the court which more or less represents a major "F*ck You!" to the majority.
Although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.
While the majority opinion says Congress is free to write a new formula to reflect current conditions, it seems unlikely Congress will act, given the House's conservative leanings and the Republican Party's dominance in the states that have historically been subjected to Section 5.
Read the full opinion here.