BREAKING: U.S. Supreme Court strikes down Section 4 of Voting Rights Act, but not Section 5


Posted by AzBlueMeanie:

GavelThe U.S. Supreme Court this morning struck down the coverage formula provision of the Voting Rights Act, Section 4. Chief Justice Roberts writing for the Court held that Section 4 of the Voting Rights Act is unconstitutional. Its formula can no longer be used as a basis for subjecting jurisdictions to preclearance.

Chief Justice Roberts writes that Section 4 is unconstitutional in light of current conditions. In 1966, the formula was rational in both practice and theory. Coverage today is based on decades-old data and eradicated practices. The Court makes clear that "Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula [of Section 4]. Congress may draft another formula based on current conditions."

Justice Thomas concurs, and argues that he would strike down Section 5 preclearance as well.

Justice Ginsburg dissents, joined by Justices Breyer Sotomayor, and Kagan. In Justice Ginsburg's dissent, she says "In the Court's view, the very success of Section 5 of the Voting Rights Act demands its dormancy."

Justice Ginsburg is correct: until Congress enacts a new Section 4 formula, the Department of Justice and the courts are without guidance on how to evaluate Section 5 preclearance. This ruling effectively suspends Section 5 until a new formula is enacted.

Here is the opinion in
Shelby County (.pdf).

There will be substantial commentary today on the effects of this ruling.

Amy Howe from SCOTUSblog: Today’s holding in Shelby County v. Holder, in Plain English: Today the Court issued its decision in Shelby County v.
Holder, the challenge to the constitutionality of the preclearance provisions of the Voting Rights Act. That portion of the Act was designed to prevent discrimination in voting by requiring all state and local governments with a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures, no matter how small. In an opinion by Chief Justice John Roberts that was joined by Justices Scalia, Kennedy, Thomas, and Alito, the Court did not invalidate the principle that preclearance can be required. But much more importantly, it held that Section 4 of the Voting Rights Act, which sets out the formula that is used to determine which state and local governments must comply with Section 5’s preapproval requirement, is unconstitutional and can no longer be used. Thus, although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.

From the Chief Justice: "Tomorrow at 10 a.m. will be the last day and we will release all the remaining [3] opinions." Wednesday is marriage equality day.


  1. I recommend you view this discussion from The Last Word which explains why Congress continues to use the same formula on reauthorizations of the VRA.

    The Court rejected the congressional record that Congress established in 2006 to support reauthorization. Many of the districts originally identified in the VRA were now “second generation” districts where discrimination was continuing even after the VRA, based upon evidence in the congressional record. The reaction of Southern states today in the wake of the Court’s ruling demonstrates how ready they are to discriminate when not bound by Section 5 preclearance.

    The Court does not get to decide what formula is less objectionable to them. The Court is not a super-legislative body. They are only to decide if an act is constitutional, and the VRA since its adoption has been held constitutional under the authorization of the 15th Amendment. If Congress has a rational basis for its act, supported by the evidence, that passes constitutional muster — until today.

    You should read the court’s opinion. The Court never identifies what is unconstitutional about Section 4, Justice Roberts says it violates the spirit and intent of the Constitution. It is sophistry of the worst kind. Roberts has been opposed to the VRA since he worked in the Reagan Justice Dept. in 1982, and this Federalist Society lawyer used a B.S. Tenth Amendment “state sovereignty” argument that is directly at odds with the history and application of the 14th Amendment and 15th Amendment adopted post-Civil War.

    This will go down as one of the worst Supreme Court decisions ever.

  2. While agreeing with the above poster, I have to admit to some puzzlement. I was under the impression that the portion of the VRA that was most under threat in this case was Section 5, the Preclearance part. I am not a lawyer and haven’t read the VRA so I was wondering if there could be some discussion (or reference to a discussion) as to exactly what SCOTUS objected to in Section 4?

    Yes I should have been following this more closely, and yes the VRA is effectively derailed regardless. But I’m wondering if the legislative solution that SCOTUS poses is easier or harder since their objection is to the formula in Section 4? And did they give any indication in their ruling as to what kind of formula they would find less objectionable? I know this is a pretty academic question but it would help me to understand the strategies that might come into play in the future.


  3. Liberal judicial activism–bad. Conservative judicial activism–good. What about deferring to the legislative branch on this rather making up their own standards. Why was this 5-4 vote so predictable?