In a 5-4 ruling, the United States Supreme Court today declared § 4 of the Voting Rights Act unconstitutional. Chief Justice Roberts delivered the majority opinion in Shelby County v. Holder, recognizing that when it was enacted in 1965, the Voting Rights Act “employed extraordinary measures to address an extraordinary problem.” The purpose of the Act was to address 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.”

When first enacted, § 4 applied to only certain States that had maintained a test or device as a prerequisite to voting as of November of 1964, and had less than 50 percent voter turnout in the 1964 Presidential election. Section 5 requires States to obtain preclearance, or permission before enacting any changes in voting laws or procedures. Originally, both § 4 and § 5 were intended to be temporary and were set to expire after five years. However, Congress has reauthorized the Act and extended its reach to more states, and has expanded the definitions of what constitutes a voting test. Most recently, in 2006, Congress reauthorized the Act for an additional 25 years, without changing the coverage formula first approved in 1965, and further expanding the prohibitions under § 5.

Following the Act’s reauthorization, Shelby County, Alabama sued the U.S. Attorney General challenging the constitutionality of § 4 and § 5. The trial court and D.C. Circuit Court of Appeals upheld those provisions and Shelby County appealed to the U.S. Supreme Court. On appeal, Chief Justice Roberts observed that the Tenth Amendment provides the States power to regulate their own elections. In addition to State sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. According to Roberts, the Voting Rights Act represented a sharp departure from those two fundamental principles by regulating State elections and singling out certain States. At the time, the U.S. Supreme Court recognized that these extraordinary legislative measures were justified by “exceptional conditions.”

Nearly 50 years later, however, Congress employs the same coverage formulas that were used in the 1960’s and has expanded the prohibitions in § 5, despite the record showing vast improvements related to election discrimination. For example, the record showed that in the most recent election, African-American voter turnout exceeded white voter turnout in 5 out of the 6 States first covered by § 5. In 2006, Congress observed that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices.”

Nevertheless, in 2006, Congress reenacted the coverage formulas “based on 40-year-old facts having no logical relation to the present day,” wrote Chief Justice Roberts. Because Congress did not update the coverage formulas, the Court determined that § 4 was unconstitutional and, as a result, the formulas in that section no longer could be used as a basis for subjecting jurisdictions to preclearance under § 5. The Court clarified that its decision “in no way affects the permanent, nationwide ban on racial discrimination in voting found in § 2.” Further, it did not touch on the constitutionality of § 5. Roberts concluded, “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.”

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