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Tuesday, June 25, 2013

Supreme Court Strikes Down Voting Rights Act Preclearance Coverage Formula

In today's decision in Shelby County v. Holder, the Supreme Court struck down the preclearance coverage formula in section 4b of the Voting Rights Act (VRA), but left the door open for Congress to develop a new formula through which it might still enforce preclearance.  Sections 4 and 5 of the VRA have been the center of controversy for a number of years because they required certain covered states and counties to apply for "preclearance" from the Federal government before making any changes in voting practices.

The debated coverage formula dates back to the 1960's and it was put in place to prevent the kind of overt voter discrimination that was commonplace in that era.  The Court made it clear in  South Carolina v. Katzenbach that section 5 was an “uncommon exercise of congressional power” that would not have been “appropriate” absent the “exceptional conditions” and “unique circumstances” present at that particular time.  86 S.Ct. 803.

The issue today was that the coverage formula is out of date.  It uses forty and fifty year old data and all sides agree that "the South has changed" since the 1960's.  The government's argument in support of retaining the formula was that it encompassed counties with the worst histories of discrimination and the most successful voter discrimination lawsuits.

Shelby County, Alabama challenged Sections 4 and 5 of the VRA.  It claimed that several of the requirements were unconstitutional and that the formula was no longer narrowly-tailored enough to justify its continued use so many years later.  It specifically challenged the need for federal preclearance for even minor voting changes, like new registration forms or changed in polling locations.  Also at issue was the requirement of grouping minority voters into minority-majority block districts to increase the likelihood of a minority candidate's election.

Here is some basic statistical evidence:

The covered states are mostly covered because of their actions over forty years ago.

Today, covered states actually do a much better job of electing minority officials.

The worst states for minority voter registration are MA, WA and CO - all not covered by preclearance.

Covered states also do better with minority voter turnout than many uncovered states.

Based on this and other data, Shelby country argued that there was no longer a significant difference between covered and uncovered states and at the very least the  “exceptional conditions” and “unique circumstances” present in the 1960's were no longer evident.

The government countered by claiming that this evidence was merely proof to the effectiveness of these sections and of the policing done as a result.

There are far more federal observers policing elections in covered states. 
There are far more successful voter discrimination lawsuits in the covered states despite the effects preclearance and the presence of federal observers.

In an opinion by Chief Justice John Roberts, joined by Justices Thomas, Scalia, Kennedy and Alito, the Court did not strike down preclearance in general, but it did hold that the coverage formula set out in Section 4 of the VRA was unconstitutional.   As can be seen by the data, there are covered and uncovered states mixed together and failing different metrics.  A good formula would encompass almost all offending states without substantially affecting states with good records.

Justice Ginsberg authored an dissent which she read in open court.  She insisted that the success of sections 4 and 5 were reason enough to leave them intact.

In the end, The Court struck the current coverage formula, but left the door open for Congress to enact a new coverage formula and continue enforcing preclearance where needed.

Read the Opinion Here: