SHELBY
COUNTY, ALABAMA, PETITIONER v. ERIC H. HOLDER, Jr.,
ATTORNEY GENERAL, et al.
June 25, 2013
Chief Justice Roberts delivered the
opinion of the Court.
The Voting Rights Act of 1965
employed extraordinary measures to address an
extraordinary problem. Section 5 of the Act required
States to obtain federal permission before enacting any
law related to voting—a drastic departure from basic
principles of federalism. And §4 of the Act applied
that requirement only to some States—an equally dramatic
departure from the principle that all States enjoy equal
sovereignty. This was strong medicine, but Congress
determined it was needed to address entrenched racial
discrimination in voting, “an insidious and pervasive
evil which had been perpetuated in certain parts of our
country through unremitting and ingenious defiance of
the Constitution.” South Carolina v. Katzenbach (1966)
. As we explained in upholding the law, “exceptional
conditions can justify legislative measures not
otherwise appropriate.” Reflecting the
unprecedented nature of these measures, they were
scheduled to expire after five years.
Nearly 50 years later, they are still
in effect; indeed, they have been made more stringent,
and are now scheduled to last until 2031. There is no
denying, however, that the conditions that originally
justified these measures no longer characterize voting
in the covered jurisdictions. By 2009, “the racial gap
in voter registration and turnout [was] lower in the
States originally covered by §5 than it [was]
nationwide.” Since that time, Census Bureau data
indicate that African-American voter turnout has come to
exceed white voter turnout in five of the six States
originally covered by §5, with a gap in the sixth
State of less than one half of one percent.
At the same time, voting
discrimination still exists; no one doubts that. The
question is whether the Act’s extraordinary measures,
including its disparate treatment of the States,
continue to satisfy constitutional requirements. As we
put it a short time ago, “the Act imposes current
burdens and must be justified by current needs.”
The Fifteenth
Amendment was ratified in 1870, in the wake of
the Civil War. It provides that “[t]he right of citizens
of the United States to vote shall not be denied or
abridged by the United States or by any State on account
of race, color, or previous condition of servitude,” and
it gives Congress the “power to enforce this article by
appropriate legislation.” Inspired to action by
the civil rights movement, Congress responded in 1965
with the Voting Rights Act. Section 2 was enacted to
forbid, in all 50 States, any “standard, practice, or
procedure . . . imposed or applied
. . . to deny or abridge the right of any
citizen of the United States to vote on account of race
or color.” The current version forbids any “standard,
practice, or procedure” that “results in a denial or
abridgement of the right of any citizen of the United
States to vote on account of race or color.”
Section 2 is permanent, applies nationwide, and is not
at issue in this case.
Other sections targeted only some
parts of the country. At the time of the Act’s passage,
these “covered” jurisdictions were those States or
political subdivisions that had maintained a test or
device as a prerequisite to voting as of November 1,
1964, and had less than 50 percent voter registration or
turnout in the 1964 Presidential election. Such tests or
devices included literacy and knowledge tests, good
moral character requirements, the need for vouchers from
registered voters, and the like. A covered jurisdiction
could “bail out” of coverage if it had not used a test
or device in the preceding five years “for the purpose
or with the effect of denying or abridging the right to
vote on account of race or color.” In 1965, the covered
States included Alabama, Georgia, Louisiana,
Mississippi, South Carolina, and Virginia. The
additional covered subdivisions included 39 counties in
North Carolina and one in Arizona.
In those jurisdictions, §4 of
the Act banned all such tests or devices. Section 5
provided that no change in voting procedures could take
effect until it was approved by federal authorities in
Washington, D. C.—either the Attorney General or a
court of three judges. A jurisdiction could obtain such
“preclearance” only by proving that the change had
neither “the purpose [nor] the effect of denying or
abridging the right to vote on account of race or
color.”
Sections 4 and 5 were intended to be
temporary; they were set to expire after five years. In
South Carolina v. Katzenbach, we upheld the 1965 Act
against constitutional challenge, explaining that it was
justified to address “voting discrimination where it
persists on a pervasive scale....”
In 2006, Congress again reauthorized
the Voting Rights Act for 25 years...Section 5 now
forbids voting changes with “any discriminatory purpose”
as well as voting changes that diminish the ability of
citizens, on account of race, color, or language
minority status, “to elect their preferred candidates of
choice.”
Shortly after this reauthorization, a
Texas utility district brought suit, seeking to bail out
from the Act’s coverage and, in the alternative,
challenging the Act’s constitutionality.....We explained
[in Northwest Austin] that §5 “imposes substantial
federalism costs” and “differentiates between the
States, despite our historic tradition that all the
States enjoy equal sovereignty.” We also noted that
“[t]hings have changed in the South....Ultimately,
however, the Court’s construction of the bailout
provision left the constitutional issues for another
day.
Shelby County is located in Alabama,
a covered jurisdiction. It has not sought bailout, as
the Attorney General has recently objected to voting
changes proposed from within the county. Instead, in
2010, the county sued the Attorney General in Federal
District Court in Washington, D. C., seeking a
declaratory judgment that sections 4(b) and 5 of the
Voting Rights Act are facially unconstitutional, as well
as a permanent injunction against their enforcement. The
District Court ruled against the county and upheld the
Act....
We granted certiorari.
II
In Northwest Austin, we stated that
“the Act imposes current burdens and must be justified
by current needs.” And we concluded that “a
departure from the fundamental principle of equal
sovereignty requires a showing that a statute’s
disparate geographic coverage is sufficiently related to
the problem that it targets.” These basic principles
guide our review of the question before us.
The Constitution and laws of the
United States are “the supreme Law of the Land.” State
legislation may not contravene federal law. The Federal
Government does not, however, have a general right to
review and veto state enactments before they go into
effect. A proposal to grant such authority to “negative”
state laws was considered at the Constitutional
Convention, but rejected in favor of allowing state laws
to take effect, subject to later challenge under the
Supremacy Clause.
Outside the strictures of the
Supremacy Clause, States retain broad autonomy in
structuring their governments and pursuing legislative
objectives. Indeed, the Constitution provides that all
powers not specifically granted to the Federal
Government are reserved to the States or citizens. Amdt.
10. This “allocation of powers in our federal system
preserves the integrity, dignity, and residual
sovereignty of the States.” But the federal balance “is
not just an end in itself: Rather, federalism secures to
citizens the liberties that derive from the diffusion of
sovereign power.”
More specifically, “ ‘the
Framers of the Constitution intended the States to keep
for themselves, as provided in the Tenth
Amendment, the power to regulate
elections.’ ” Of course, the Federal Government
retains significant control over federal elections. For
instance, the Constitution authorizes Congress to
establish the time and manner for electing Senators and
Representatives. But States have “broad powers to
determine the conditions under which the right of
suffrage may be exercised.” And “[e]ach State has the
power to prescribe the qualifications of its officers
and the manner in which they shall be chosen.” Drawing
lines for congressional districts is likewise “primarily
the duty and responsibility of the State.”
Not only do States retain sovereignty
under the Constitution, there is also a “fundamental
principle of equal sovereignty” among the States.
Over a hundred years ago, this Court explained that our
Nation “was and is a union of States, equal in power,
dignity and authority.” Indeed, “the
constitutional equality of the States is essential to
the harmonious operation of the scheme upon which the
Republic was organized.”
The Voting Rights Act sharply departs
from these basic principles. It suspends “all changes to
state election law—however innocuous—until they have
been precleared by federal authorities in Washington, D.
C.” States must beseech the Federal Government for
permission to implement laws that they would otherwise
have the right to enact and execute on their own,
subject of course to any injunction in a §2 action.
The Attorney General has 60 days to object to a
preclearance request, longer if he requests more
information. If a State seeks preclearance from a
three-judge court, the process can take years.
And despite the tradition of equal
sovereignty, the Act applies to only nine States (and
several additional counties). While one State waits
months or years and expends funds to implement a validly
enacted law, its neighbor can typically put the same law
into effect immediately, through the normal legislative
process. Even if a noncovered jurisdiction is sued,
there are important differences between those
proceedings and preclearance proceedings; the
preclearance proceeding “not only switches the burden of
proof to the supplicant jurisdiction, but also applies
substantive standards quite different from those
governing the rest of the nation.”
All this explains why, when we first
upheld the Act in 1966, we described it as “stringent”
and “potent.” We recognized that it “may have been
an uncommon exercise of congressional power,” but
concluded that “legislative measures not otherwise
appropriate” could be justified by “exceptional
conditions.” We have since noted that the Act
“authorizes federal intrusion into sensitive areas of
state and local policymaking,” and represents an
“extraordinary departure from the traditional course of
relations between the States and the Federal
Government.”
In 1966, we found these departures
from the basic features of our system of government
justified. The “blight of racial discrimination in
voting” had “infected the electoral process in parts of
our country for nearly a century.” Several States had
enacted a variety of requirements and tests
“specifically designed to prevent” African-Americans
from voting. Case-by-case litigation had proved
inadequate to prevent such racial discrimination in
voting, in part because States “merely switched to
discriminatory devices not covered by the federal
decrees,” “enacted difficult new tests,” or simply
“defied and evaded court orders.” Shortly before
enactment of the Voting Rights Act, only 19.4 percent of
African-Americans of voting age were registered to vote
in Alabama, only 31.8 percent in Louisiana, and only 6.4
percent in Mississippi.Those figures were roughly 50
percentage points or more below the figures for whites.
In short, we concluded that “[u]nder
the compulsion of these unique circumstances, Congress
responded in a permissibly decisive manner.” We also
noted then and have emphasized since that this
extra-ordinary legislation was intended to be temporary,
set to expire after five years.
Nearly 50 years later, things have
changed dramatically. Shelby County contends that the
preclearance re-quirement, even without regard to its
disparate coverage, is now unconstitutional. Its
arguments have a good deal of force. In the covered
jurisdictions, “[v]oter turnout and registration rates
now approach parity. Blatantly discriminatory evasions
of federal decrees are rare. And minority candidates
hold office at unprecedented levels.” The tests and
devices that blocked access to the ballot have been
forbidden nationwide for over 40 years. Those
conclusions are not ours alone. Congress said the same
when it reauthorized the Act in 2006, writing that
“[s]ignificant progress has been made in eliminating
first generation barriers experienced by minority
voters, including increased numbers of registered
minority voters, minority voter turnout, and minority
representation in Congress, State legislatures, and
local elected offices....”
There is no doubt that these
improvements are in large part because of the Voting
Rights Act. The Act has proved immensely successful at
redressing racial discrimination and integrating the
voting process. During the “Freedom Summer” of 1964, in
Philadelphia, Mississippi, three men were murdered while
working in the area to register African-American voters.
On “Bloody Sunday” in 1965, in Selma, Alabama, police
beat and used tear gas against hundreds marching in
support of African-American enfranchisement. Today both
of those towns are governed by African-American mayors.
Problems remain in these States and others, but there is
no denying that, due to the Voting Rights Act, our
Nation has made great strides.
Yet the Act has not eased the
restrictions in §5 or narrowed the scope of the
coverage formula in §4(b) along the way. Those
extraordinary and unprecedented features were
reauthorized—as if nothing had changed. In fact, the
Act’s unusual remedies have grown even stronger. When
Congress reauthorized the Act in 2006, it did so for
another 25 years on top of the previous 40—a far cry
from the initial five-year period....
Respondents do not deny that there
have been improvements on the ground, but argue that
much of this can be attributed to the deterrent effect
of §5, which dissuades covered jurisdictions from
engaging in discrimination that they would resume should
§5 be struck down. Under this theory, however,
§5 would be effectively immune from scrutiny; no
matter how “clean” the record of covered jurisdictions,
the argument could always be made that it was deterrence
that accounted for the good behavior.
The provisions of §5 apply only
to those jurisdictions singled out by §4. We now
consider whether that coverage formula is constitutional
in light of current conditions.
III
When upholding the constitutionality
of the coverage formula in 1966, we concluded that it
was “rational in both practice and theory.” The formula
looked to cause (discriminatory tests) and effect (low
voter registration and turnout), and tailored the remedy
(preclearance) to those jurisdictions exhibiting both.
By 2009, however, we concluded that
the “coverage formula raise[d] serious constitutional
questions.” As we explained, 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.
Coverage today is based on
decades-old data and eradicated practices. The formula
captures States by reference to literacy tests and low
voter registration and turnout in the 1960s and early
1970s. But such tests have been banned nationwide for
over 40 years. And voter registration and turnout
numbers in the covered States have risen dramatically in
the years since. Racial disparity in those numbers was
compelling evidence justifying the preclearance remedy
and the coverage formula. There is no longer such
a disparity.
In 1965, the States could be divided
into two groups: those with a recent history of voting
tests and low voter registration and turnout, and those
without those characteristics. Congress based its
coverage formula on that distinction. Today the Nation
is no longer divided along those lines, yet the Voting
Rights Act continues to treat it as if it were.
The Government’s defense of the
formula is limited. First, the Government contends that
the formula is “reverse-engineered”: Congress identified
the jurisdictions to be covered and then came up with
criteria to describe them. Under that reasoning, there
need not be any logical relationship be-tween the
criteria in the formula and the reason for coverage; all
that is necessary is that the formula happen to capture
the jurisdictions Congress wanted to single out.
The Government suggests that
Katzenbach sanctioned such an approach, but the analysis
in Katzenbach was quite different. Katzenbach reasoned
that the coverage formula was rational because the
“formula . . . was relevant to the problem”:
“Tests and devices are relevant to voting discrimination
because of their long history as a tool for perpetrating
the evil; a low voting rate is pertinent for the obvious
reason that widespread disenfranchisement must
inevitably affect the number of actual voters.”
Here, by contrast, the Government’s
reverse- engineering argument does not even attempt to
demonstrate the continued relevance of the formula to
the problem it targets. And in the context of a decision
as significant as this one—subjecting a disfavored
subset of States to “extraordinary legislation otherwise
unfamiliar to our federal system”—that failure to
establish even relevance is fatal.
The Government falls back to the
argument that because the formula was relevant in 1965,
its continued use is permissible so long as any
discrimination remains in the States Congress identified
back then—regardless of how that discrimination compares
to discrimination in States unburdened by coverage. This
argument does not look to “current political
conditions,” but instead relies on a comparison between
the States in 1965. That comparison reflected the
different histories of the North and South. It was in
the South that slavery was upheld by law until uprooted
by the Civil War, that the reign of Jim Crow denied
African-Americans the most basic freedoms, and that
state and local governments worked tirelessly to
disenfranchise citizens on the basis of race. The Court
invoked that history—rightly so—in sustaining the
disparate coverage of the Voting Rights Act in
1966.
But history did not end in 1965. By
the time the Act was reauthorized in 2006, there had
been 40 more years of it. In assessing the current need
for a preclearance system that treats States differently
from one another today, that history cannot be ignored.
During that time, largely because of the Voting Rights
Act, voting tests were abolished, disparities in voter
registration and turnout due to race were erased, and
African-Americans attained political office in record
numbers. And yet the coverage formula that Congress
reauthorized in 2006 ignores these developments, keeping
the focus on decades-old data relevant to decades-old
problems, rather than current data reflecting current
needs.
The Fifteenth
Amendment commands that the right to vote shall
not be denied or abridged on account of race or color,
and it gives Congress the power to enforce that command.
The Amendment is not designed to punish for the past;
its purpose is to ensure a better future. To serve that
purpose, Congress—if it is to divide the States—must
identify those jurisdictions to be singled out on a
basis that makes sense in light of current conditions.
It cannot rely simply on the past. We made that clear in
Northwest Austin, and we make it clear again today....
The dissent turns to the record to
argue that, in light of voting discrimination in Shelby
County, the county cannot complain about the provisions
that subject it to preclearance. But that is like saying
that a driver pulled over pursuant to a policy of
stopping all redheads cannot complain about that policy,
if it turns out his license has expired. Shelby County’s
claim is that the coverage formula here is
unconstitutional in all its applications, because of how
it selects the jurisdictions subjected to preclearance.
The county was selected based on that formula, and may
challenge it in court....
There is no valid reason to insulate
the coverage formula from review merely because it was
previously enacted 40 years ago. If Congress had started
from scratch in 2006, it plainly could not have enacted
the present coverage formula. It would have been
irrational for Congress to distinguish between States in
such a fundamental way based on 40-year-old data, when
today’s statistics tell an entirely different story. And
it would have been irrational to base coverage on the
use of voting tests 40 years ago, when such tests have
been illegal since that time. But that is exactly what
Congress has done.
Striking down an Act of Congress “is
the gravest and most delicate duty that this Court is
called on to perform.” We do not do so lightly. That is
why, in 2009, we took care to avoid ruling on the
constitutionality of the Voting Rights Act when asked to
do so, and instead resolved the case then before us on
statutory grounds. But in issuing that decision, we
expressed our broader concerns about the
constitutionality of the Act. Congress could have
updated the coverage formula at that time, but did not
do so. Its failure to act leaves us today with no choice
but to declare §4(b) unconstitutional. The formula
in that section can no longer be used as a basis for
subjecting jurisdictions to preclearance.
Our decision in no way affects the
permanent, nationwide ban on racial discrimination in
voting found in §2. We issue no holding on §5
itself, only on the coverage formula. Congress may draft
another formula based on current conditions. Such a
formula is an initial prerequisite to a determination
that exceptional conditions still exist justifying such
an “extraordinary departure from the traditional course
of relations between the States and the Federal
Government.” Our country has changed, and while any
racial discrimination in voting is too much, Congress
must ensure that the legislation it passes to remedy
that problem speaks to current conditions.
Justice Thomas, concurring.
I join the Court’s opinion in full
but write separately to explain that I would find
§5 of the Voting Rights Act unconstitutional as
well....
Justice Ginsburg, with whom Justice
Breyer, Justice Sotomayor, and Justice Kagan join,
dissenting.
In the Court’s view, the very success
of §5 of the Voting Rights Act demands its
dormancy. Congress was of another mind. Recognizing that
large progress has been made, Congress determined, based
on a voluminous record, that the scourge of
discrimination was not yet extirpated. The question this
case presents is who decides whether, as currently
operative, §5 remains justifiable, this Court,
or a Congress charged with the obligation to enforce the
post-Civil War Amendments “by appropriate legislation.”
With overwhelming support in both Houses, Congress
concluded that, for two prime reasons, §5 should
continue in force, unabated. First, continuance would
facilitate completion of the impressive gains thus far
made; and second, continuance would guard against
backsliding. Those assessments were well within
Congress’ province to make and should elicit this
Court’s unstinting approbation....
Beyond question, the VRA is no
ordinary legislation. It is extraordinary because
Congress embarked on a mission long delayed and of
extraordinary importance: to realize the purpose and
promise of the Fifteenth Amendment.
For a half century, a concerted effort has been made to
end racial discrimination in voting. Thanks to the
Voting Rights Act, progress once the subject of a dream
has been achieved and continues to be made.
The record supporting the 2006
reauthorization of the VRA is also extraordinary. It was
described by the Chairman of the House Judiciary
Committee as “one of the most extensive considerations
of any piece of legislation that the United States
Congress has dealt with in the 27½ years” he had
served in the House. After exhaustive evidence-gathering
and deliberative process, Congress reauthorized the VRA,
including the coverage provision, with overwhelming
bipartisan support. It was the judgment of Congress that
“40 years has not been a sufficient amount of time to
eliminate the vestiges of discrimination following
nearly 100 years of disregard for the dictates of the
15th amendment and to ensure that the right of all
citizens to vote is protected as guaranteed by the
Constitution.” That determination of the body empowered
to enforce the Civil War Amendments “by appropriate
legislation” merits this Court’s utmost respect. In my
judgment, the Court errs egregiously by overriding
Congress’ decision.
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