Shelby County v.

Holder
In 2006, Congress reauthorized the Voting Rights Act of 1965 (“VRA”) for 25
years. Section 5 of the VRA requires certain “covered” jurisdictions to obtain
federal preclearance before making any alterations to their election laws.
Section 4(b) sets forth a formula for determining if a jurisdiction is covered.
Petitioner Shelby County, Alabama, a covered jurisdiction, asserts that the
preclearance regime exceeds Congress’s power to enforce the Fourteenth
and Fifteenth Amendments, and violates the Tenth Amendment and Article
IV. Other covered jurisdictions, amicihere, complain that the VRA’s
restrictions subject them to a double standard and infringe on their state
sovereignty rights. Attorney General Holder, the Respondent, contends that
these restrictions are necessary to fight regression among states with a
history of voting rights abuses. Shelby County argues that current conditions
no longer justify preclearance at all, and that the coverage formula is
antiquated in any case. Holder argues that preclearance remains a valid
exercise of congressional power and that the formula, in combination with
the VRA’s “bailout” provision, creates a coverage regime that meets the
requirements of the Constitution.

Questions as Framed for the Court by the Parties

Whether Congress’s decision in 2006 to reauthorize Section 5 of the VRA
under the pre-existing coverage formula of Section 4(b) exceeded its
authority under the Fifteenth Amendment and thus violated the Tenth
Amendment and Article IV of the United States Constitution.
Whether Congress’s twenty-five year extension of the Voting Rights Act
exceeded its power to enforce the protections of the Fourteenth and
Fifteenth Amendments.
In 1965, Congress enacted the VRA “to banish the blight of racial
discrimination in voting.” See . The VRA put special restrictions on
jurisdictions that had a “test or device prohibited by Section 4(a)” of the
VRA, and in which less than half of the eligible residents were registered to
vote, or less than half of those people actually voted in the 1964 Presidential
election. These jurisdictions
included Alabama, Alaska, Georgia, Louisiana, Mississippi, South
Carolina, Virginia, and parts of North Carolina, Arizona, Idaho, and Hawaii. .
Under Section 5, covered jurisdictions are required to seek approval by
the Attorney General (“AG”) or a three-judge D.C. panel before they can
make any changes to voting practices. This preclearance function was
intended to ensure that the change “did not have the purpose and will not
have the effect of denying or abridging the right to vote on account of race
or color.”
The preclearance aspect of Section 5 and Section 4(b)’s coverage formula
was both challenged at the Supreme Court in South Carolina v.
Katzenbach(1966), but without success. In its decision, the Court relied on
evidence that the covered jurisdictions had been singled out by a rational
theory and that those jurisdictions had systematically evaded the protections
of the Fifteenth Amendment.
While the original term of the VRA’s preclearance restriction was five years,
Congress reauthorized the provision for another five years in 1970, another
seven years in 1975, and another twenty-five years in 1982. See . The
States and counties challenged the first reauthorizations in the Supreme
Court without success in Georgia v. United States (1973) and City of Rome
v. United States (1980). In Georgia v. Ashcroft (2003), the Supreme Court
limited the “effect” prong of Section 5 to “a ‘minority group’s opportunity to
participate in the political process,’” as opposed to the prior iteration, which
considered “the comparative ability of a minority group to elect a candidate
of its choice.”
In 2006, Congress reauthorized the VRA for an additional 25 years. See In
doing so, it based coverage under Section 4(2) on election data from 1964,
1968, and 1972. The reauthorization and its use of older election data for its
coverage formula were challenged in Northwest Austin Municipal Utility
District No. One v. Holder (2009) (“Northwest Austin”). The Court found that
the burdens of Section 5 must be “justified by current needs” and Section
4(b)’s “departure from the fundamental principal of equal sovereignty
requires a showing that a statute’s disparate geographic coverage is
sufficiently related to the problem that it targets.”
In 2010, addressing the Constitutional questions left open in Northwest
Austin, Shelby County sought a permanent injunction that would cease
enforcement of Sections 4(b) and 5 of the VRA. Shelby County lost its initial
filing and its appeal to the D.C. Circuit, and now seeks review before the
Supreme Court.
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The central issue in this case is whether Congress’s 25-year extension of
sections 4(b) and 5 the VRA exceeded its authority under the Fifteenth
Amendment. Shelby County argues that this extension was beyond
Congress’s authority, and violated the Tenth Amendment and Article IV of
the Constitution. Holder argues that the extension was within Congress’s
authority, and was necessary to counter regression in voting practices
among states with a history of restrictions on minority voting rights.
DOUBLE STANDARD
Many of the amicus briefs in support of Shelby County are written on behalf
of states and other counties who find themselves subject to the VRA‘s
provisions. The concern that almost all of these amici share is the double
standard they claim to be subject to with regard to the enactment of laws
that may tangentially affect minority voting rights. Specifically, Alabama
points out that when it attempted to enact a law that would require residents
to provide proof of citizenship when they registered to vote, the state was
required to make supplemental submissions to the Department of
Justice (“DOJ”) before the law would be cleared under the VRA. Alabama
compares that situation to the enactment of virtually identical laws in
Arizona and Georgia, both of which were pre-cleared by the DOJ and did not
require supplemental submissions. According to the other amicus briefs
supporting Shelby County, this is not an isolated incident and in fact occurs
frequently, in part because of the vague nature of the DOJ’s standards for
preclearance.
In her amicus brief in support of Respondent Holder, Professor Patricia A.
Broussard of Florida A&M University College of Law counters that the
restrictions placed upon certain states and counties under the VRA are
necessary, and help protect minority voters from retrogression. In support,
Professor Broussard cites Texas v. Holder (2012), a D.C. Circuit case where
Texas challenged Holder’s denial of preclearance for a law that would limit
the forms of ID that would be accepted at polling stations. In deciding that
case, Professor Broussard asserts, the D.C. Circuit found that this new ID
requirement would have a “disparate impact on poor, minority, and elderly
voters.”
STATE SOVEREIGNTY AND FEDERALISM
Another concern shared by many of Shelby County’s amici is that the VRA
impinges on federalism and state sovereignty with regard to elections. In
particular, the amici point to the supervisory power historically granted to
states over their own state elections. While the amici admit that this power
is not absolute, they find that the unequal restrictions placed on certain
states under the VRA is an infringement on state sovereignty and puts those
states on unequal footing from their neighbors, raising federalism
concerns.
In response, amici supporting Respondent address sovereignty concerns as
competing with Constitutional accountability. Additionally, they look to the
Supreme Court’s history of support for the VRA, finding that its restrictions
do not infringe on state sovereignty concerns. They also suggest that any
imposition the VRA coverage puts on a state is proportional to the need for
such coverage with the goal of protecting minority voters. .
PRECLEARANCE
Shelby County begins by arguing that Congress has failed to produce an
evidentiary record sufficient to justify renewing the VRA. The VRA’s initial
passage of was justified, according to Petitioner, by states continuously
altering their voting laws to remain one step ahead of any court victories
achieved by minority voters. It was a legislative record of such practices
that, according to Shelby County, permitted the Supreme Court to uphold
the VRA in the case of South Carolina v. Katzenbach (1966). Now, Petitioner
asserts, there is no evidence of such practices in the record.
The evidence that Congress did rely on in renewing Section 5, according to
Shelby County, consists largely of preclearance denials in covered
jurisdictions. . Petitioner argues that these data are a poor indication of
actual intentional discrimination in voting. Moreover, Shelby County argues
that the direct evidence of discrimination is “scattered.” . Much of this, in
turn, is evidence of vote dilution, not actual denial of ballot access, which
Petitioner asserts does not violate the Fifteenth Amendment. . In short,
Shelby County argues that current conditions in covered jurisdictions are
such that remedies less drastic than Section 5 preclearance would be
adequate.
The Attorney General argues that, in fact, Congress made a considered
decision to renew Section 5 and amassed a significant amount of supporting
evidence. See First, Holder asserts, Congress found substantial evidence of
racial discrimination in voting in the covered jurisdictions. In his view,
evidence from the Section 5 process itself, such as objections to
preclearance requests, is highly relevant to Congress’s determination that
the preclearance regime should remain in place. . The Attorney General also
urges that even if vote dilution does not violate the Fifteenth Amendment, it
does violate the Equal Protection Clause of the Fourteenth and is therefore
within Congress’s power to protect against. .
Shelby County further argues that the reasoning of the D.C. Circuit would
justify preclearance in perpetuity. . According to Petitioner, the court below
would allow Congress to determine for itself the constitutional significance of
evidence in its record, which threatens to remove the limitation that
Congress may “enforce” (but not actually interpret) the Fourteenth and
Fifteenth Amendments. . Finally, in Shelby County’s view, the D.C. Circuit
engaged in the paradoxical reasoning that the absence of discrimination was
evidence of the deterrent value of the preclearance requirement. . In
Petitioner’s view, this is inadequate evidence to support enforcement
legislation.
The Attorney General responds that Congress correctly determined, based
on the record, that Section 5 continues to deter discrimination in voting that
would violate the Constitution. This evidence, according to Holder, is part of
the reason that Congress was nearly unanimous in its decision to renew
Section 5 in 2006. . This determination, the Attorney General argues, is
entitled to great deference by the Court.
COVERAGE FORMULA
Shelby County next argues that, even if preclearance could be justified, the
formula used to determine which jurisdictions are covered is not
rational. First, Petitioner points out that the coverage formula is based on
data that is decades old. . Shelby County argues that this alone renders the
coverage formula unconstitutional. It also argues that the coverage formula
is flawed because the factors considered are “first-generation” ballot access
issues, while the VRA is meant at present to defeat “second-generation”
problems like vote dilution.
The Attorney General points out that the criteria expressed in the coverage
formula are not in fact the focus of Congress’s concerns. Rather, according
to Holder, Congress determined which areas of the country should be
covered and then “reverse-engineered” a formula to capture those
jurisdictions. . Seen in this light, according to the Attorney General, Shelby
County misunderstands the formula’s purpose in arguing that it is flawed
simply because it relies on old data. . Rather, Holder argues, the formula
remains relevant because it still specifies the areas that Congress wishes to
subject to the preclearance requirements.
Shelby County contends that, in addition to its theoretical flaws, the
preclearance coverage formula is flawed in practice. Petitioner argues voter
registration and turnout are more equal in covered than in uncovered
jurisdictions. . The result, in Shelby County’s view, is that the coverage
formula is both over-inclusive and under-inclusive. .
Respondent-Intervenors Earl Cunningham et al. argue that Shelby County’s
argument fails because the coverage formula need not be a perfect fit, but
only “sufficiently related” to voting discrimination, to be upheld as
constitutional. Indeed, they assert, the coverage formula was imperfect, and
the Supreme Court knew it when the Court first upheld Section 5 in 1966. .
Under this standard, according to them, a bit of imprecision in coverage is
permissible, especially since Congress would be within its authority to
expand coverage to the entire nation.
The Attorney General also responds that Shelby County is incorrect, and that
voting discrimination does indeed remain concentrated in the covered
jurisdictions. In fact, Holder asserts, Congress found that indicators of racial
discrimination in voting remain more significant in the covered
jurisdictions.Finally, the Attorney General argues that the problems of
under-inclusiveness and over-inclusiveness are addressed by the “bailout”
and “bail-in” provisions. . Under these provisions, jurisdictions may either be
added or removed from the preclearance requirement depending on whether
it is shown that for the past ten years they have not violated the VRA. .
Moreover, the Attorney General points out that bailout was made even
easier by the Supreme Court’s decision in Northwest Austin.
Arguing, however, that bailout is an ineffective way to cure the irrationality
of the coverage formula, Shelby County points out that only a tiny fraction of
covered jurisdictions have successfully bailed out of preclearance. In its
view, this is because the criteria required for bailout are extremely difficult
to achieve. Moreover, the bailout requirements have been expanded to
include, according to Shelby County, highly subjective criteria beyond
merely showing that the jurisdiction should not have been included in the
first place. In sum, bailout is, in Petitioner’s view, an inadequate way to
address the unconstitutional over-inclusiveness in the coverage formula.
Shelby County asserts that the Section 5 preclearance regime exceeds
Congress’s power to enforce the Fourteenth and Fifteenth Amendments and
violates the Tenth Amendment and Article IV. Covered jurisdictions contend
that the VRA’s restrictions subject them to a double standard and infringe on
their state sovereignty rights. The Attorney General asserts that these
restrictions are necessary to counter racial discrimination in voting. Shelby
County argues that given the changed conditions, the preclearance regime is
no longer necessary or valid and that the coverage formula is antiquated.
The Attorney General responds that preclearance remains a valid exercise of
congressional power and that the formula remains constitutional