The United States Supreme Court’s June 25, 2013 decision, Shelby County v. Holder, struck down Section 4 of the 1965 Voting Rights Act, eliminating a “preclearance” coverage formula that had subjected numerous jurisdictions with checkered voting rights histories to the U.S. Department of Justice’s oversight. Although the decision allows Congress to create a new coverage formula, in today’s political climate that appears unlikely. While the preclearance system was often associated with deep Southern states like Alabama and Mississippi, in 1971 three New York City counties – Bronx, Kings and New York – were added as covered jurisdictions, and since then the DOJ has blocked New York voting laws on several occasions to protect the rights of minority voters. This article examines Shelby County v. Holder, its consequences for minority voting rights across the country, particularly in New York, and possible local remedies in the event of Congressional inaction.
Before 1965, minority voters, particularly African-Americans in the south, faced tremendous obstacles registering and exercising the right to vote. The Voting Rights Act passed following an intense period of activism led by Dr. Martin Luther King, Jr. and an aggressive lobbying effort from President Lyndon Johnson in the wake of President John F Kennedy’s assassination. The VRA did more to further ballot access to minorities than any legislation since the Civil War. The statute was extended in 1970, 1975, 1982, and 2006. In 2006, the Senate voted unanimously, 98-0, in its favor, while the House of Representatives supported its extension 390-33.
The Supreme Court’s 5-4 decision in Shelby County v. Holder boiled down to a fundamental disagreement about whether preclearance coverage was still needed in the jurisdictions subject to Section 4(b) after decades of progress eradicating the most overt forms of racial discrimination that led to the VRA’s passage, such as literary tests and poll taxes. Shelby County, Alabama, located in a state in which preclearance was required, challenged Sections 4(b) and 5 of the VRA in the Federal District Court of Washington, D.C. At the time of the lawsuit, the jurisdictions covered under Section 4(b) included nine states: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia- and jurisdictions in California, Florida, Michigan, New York, North Carolina and South Dakota. The District Court upheld the VRA, finding ample evidence for its need in Congress’ 2006 reauthorization of the statute, and the U.S. Court of Appeals for the D.C. Circuit affirmed.
The Supreme Court’s majority opinion, authored by Chief Justice Roberts, asked why the preclearance list had remained unchanged for decades, relying on data from the early 1970s. The Court struck down Section 4 as unconstitutional, finding that the coverage formula was dated and violated state sovereignty, while leaving Section 5’s preclearance enforcement requirement intact. By invalidating the preclearance coverage formula, however, the Court critically weakened Section 5, as Congress is unlikely to muster the political will to establish a new coverage formula.