NJ Employment Discrimination Attorney Historical Racism Part XI, Shelby County v. Holder Changed Way Voting Rights Act Implemented Nationwide; Justice Ruth Bader Ginsberg’s Dissent
The Voting Rights Act’s efforts to eliminate racial discrimination in voting and the progress to increase black voter turnout was arguably interrupted in part after the 2013 U.S. Supreme Court case, Shelby County v. Holder. This case changed the way the Voting Rights Act was implemented nationwide.
The Supreme Court’s decision in Shelby County v. Holder, 570 U.S. 529 (2013) held that the coverage formula set forth in Section 4(b) of the Act was unconstitutional, and as a consequence, no voting jurisdictions are now subject to the Federal oversight and regulations of elections formula in Section 4(b) or to Sections 4(f)(4) and 5 of Act.
According to the Department of Justice, “When Congress enacted the Voting Rights Act of 1965, it determined that racial discrimination in voting had been more prevalent in certain areas of the country. Section 4(a) of the Act established a formula to identify those areas and to provide for more stringent remedies where appropriate. The first of these targeted remedies was a five-year suspension of "a test or device," such as a literacy test as a prerequisite to register to vote. The second was the requirement for review, under Section 5, of any change affecting voting made by a covered area either by the United States District Court for the District of Columbia or by the Attorney General. The third was the ability of the Attorney General to certify that specified jurisdictions also required the appointment of federal examiners. These examiners would prepare and forward lists of persons qualified to vote. The final remedy under the special provisions is the authority of the Attorney General to send federal observers to those jurisdictions that have been certified for federal examiners...
As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a "test or device" restricting the opportunity to register and vote. The Act's definition of a "test or device" included such requirements as the applicant being able to pass a literacy test, establish that he or she had good moral character, or have another registered voter vouch for his or her qualifications.”
Section 4(a) of the Act had established a formula to identify those areas where racial discrimination in voting or voter suppression was prevalent and to provide for more stringent remedies where appropriate.
Another element of the formula to determine if state or a political subdivision of the state was a jurisdiction requiring “pre-clearance” would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. This resulted in some states becoming, in their entirety, covered jurisdictions. In partially covered states, the special provisions applied only to the identified counties.
Of past and topical importance was that according to Section 5, voting changes (such as changes in methods of how voting districts are drawn up) adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, were subject to review under Section 5.
In this 5-4 decision of Shelby County v. Holder, Section 4 of the Voting Rights Act was ruled unconstitutional by the Supreme Court.
The 2013 Shelby County v. Holder decision ruled that the coverage formula set forth in Section 4(b) of the Act was unconstitutional and no jurisdictions are now subject to the coverage formula in Section 4(b) or to Sections 4(f)(4) and 5 of Act. Accordingly, guidance information regarding termination of coverage under Section 4(a) of the Voting Rights Act (i.e., bailout) from certain of the Act's special provisions was no longer necessary.
The U.S. Supreme Court found that Section 4(b) of the Act was unconstitutional because it was based on a formula that used facts not relevant in 2013, and it held that the formula could not be used as a basis for subjecting jurisdictions to preclearance by federal authorities. It reasoned that Congress could have updated the coverage formula when it extended the Act in 2006 but because it did not do so, its failure to act left the Court with no choice but to declare § 4(b) unconstitutional.
The Court stated that its decision did not affect the permanent, nationwide ban on racial discrimination in voting that was found in § 2 of the Act, and it issued no ruling on § 5, only on the coverage formula.
Chief Justice John Roberts in his opinion stated that the reasoning was the Voting Rights Act was based on the old data and eradicated practices and was no longer needed. The dissenting Justices and specifically Ruth Bader Ginsberg issued their opinion that this decision set the stage for a new era of voter discrimination.
In her dissenting opinion, Justice Ginsburg suggested an analogy to illustrate why Federal oversight of the regional protections requiring preclearance before voting procedures could be changed in any voting district per the Voting Rights Act (VRA) were still necessary. She wrote 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."
In Shelby County v. Holder, the Supreme Court invalidated a coverage formula identifying jurisdictions that had to pass federal scrutiny under the Voting Rights Act, referred to as “preclearance,” in order to pass any new elections or voting laws. Those preclearance jurisdictions were chosen based on having a history of voter discrimination. This 2013 decision allowed Congress to come up with new criteria for pre-clearance coverage, but it has not happened. This decision means that currently political subdivisions facing new discriminatory voting laws have had to file lawsuits themselves or rely on the Justice Department filing suits or challenges from outside advocates, sometimes after the discriminatory laws have already taken effect.
The Court stated that Congress could draft another formula that was based on current conditions, and that such a formula was a prerequisite to a determination that exceptional conditions still existed which justified the requirement for preclearance.
Chief Justice John Roberts’s reasoning in the Court’s decision was that a statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” The coverage formula met that test in 1965, but no longer does so.
Justice Roberts’s legal reasoning was that preclearance was very effective in reversing voter disenfranchisement in the past, therefore the country no longer needs this federal oversight.
In her dissent, Justice Ruth Bader Ginsburg pointed out the apparent paradox of that reasoning, writing in her dissenting opinion that, “Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. Throwing 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.”
The Shelby County v. Holder Decision explicitly did not reject the concept of preclearance, but applying a separation of powers argument, sent the matter back to Congress to come up with new criteria but Congress has not done so. Seven years subsequent there is now no preemptive federal oversight of changes to procedures in state and local voting laws.
Justice Ginsberg wrote in her dissent in Shelby County v. Holder that rights in the covered jurisdictions would have been significantly different absent this remedy and listed examples of
how rights in the covered jurisdictions would have been significantly different absent this remedy:
“Surveying the type of changes stopped by the preclearance procedure conveys a sense of the extent to which §5 continues to protect minority voting rights. Set out below are characteristic examples of changes blocked in the years leading up to the 2006 reauthorization:
▪ In 1995, Mississippi sought to reenact a dual voter registration system, “which was initially enacted in 1892 to disenfranchise Black voters,” and for that reason, was struck down by a federal court in 1987. H. R. Rep. No. 109-478, at 39.
▪ Following the 2000 census, the city of Albany, Georgia, proposed a redistricting plan that DOJ found to be “designed with the purpose to limit and retrogress the increased black voting strength . . . in the city as a whole.” Id., at 37 (internal quotation marks omitted).
▪ In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town’s election after “an unprecedented number” of African-American candidates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen. Id., at 36-37.
▪ In 2006, this Court found that Texas’ attempt to redraw a congressional district to reduce the strength of Latino voters bore “the mark of intentional discrimination that could give rise to an equal protection violation,” and ordered the district redrawn in compliance with the VRA. League of United Latin American Citizens v. Perry, 548 U.S. 399, 440, 126 S. Ct. 2594, 165 L. Ed. 2d 609 (2006). In response, Texas sought to undermine this Court’s order by curtailing early voting in the district, but was blocked by an action to enforce the §5 preclearance requirement. See Order in League of United Latin American Citizens v. Texas, No. 06-cv-1046 (WD Tex., Dec. 5, 2006), Doc. 8.
▪ In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the board. The proposal, made without consulting any of the African-American members of the school board, was found to be an “‘exact replica’” of an earlier voting scheme that, a federal court had determined, violated the VRA. 811 F. Supp. 2d 424, 483 (DC 2011). See also S. Rep. No. 109-295, at 309. DOJ invoked §5 to block the proposal.
▪ In 1993, the city of Millen, Georgia, proposed to delay the election in a majority-black district by two years, leaving that district without representation on the city council while the neighboring majority-white district would have three representatives. 1 Section 5 Hearing 744. DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits. Id., at 816.
▪ In 2004, Waller County, Texas, threatened to prosecute two black students after they announced their intention to run for office. The county then attempted to reduce the availability of early voting in that election at polling places near a historically black university. 679 F. 3d, at 865-866.
▪ In 1990, Dallas County, Alabama, whose county seat is the city of Selma, sought to purge its voter rolls of many black voters. DOJ rejected the purge as discriminatory, [*575] noting that it would have disqualified many citizens from voting “simply because they failed to pick up or return a voter update form, when there was no valid requirement that they do so.” 1 Section 5 Hearing 356.
These examples, and scores more like them, fill the pages of the legislative record. The evidence was indeed sufficient to support Congress conclusion that “racial discrimination in voting in covered jurisdictions [remained] serious and pervasive.”
Justice Ginsberg also wrote that Congress further received evidence indicating that formal requests of the kind set out above represented only “the tip of the iceberg”. She repeated what one commentator described as an “avalanche of case studies of voting rights violations in the covered jurisdictions,” ranging from “outright intimidation and violence against minority voters” to “more subtle forms of voting rights deprivations.”Justice Ginsberg argued that the evidence gave Congress ever more reason to conclude that the “time had not yet come for relaxed vigilance against the scourge of race discrimination in voting.”
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