Constitution Daily

Smart conversation from the National Constitution Center

Supreme Court strikes down key part of Voting Rights Act

June 25, 2013 by Scott Bomboy


The Supreme Court on Tuesday struck down a key part of the historic Voting Rights Act of 1965, sending the section that determines which states need extra attention about discrimination back to Congress to be re-written.

LyndonJohnson_signs_Voting_Rights_Act_of_1965In a 5-4 decision in Shelby County v. Holder, Chief Justice John Roberts said that Section 4 of the Voting Rights Act was unconstitutional.

Link: Read the full opinion

Section 4 defines the districts that need “pre-clearance” as having had a voting test in place as of November 1, 1964 with less than 50 percent turnout for the 1964 presidential election.

Now, Democrats and Republicans will need to agree on a new formula in Congress in order for the federal government to have the power to approve voting changes in states with a discrimination history.

“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. Congress may draft another formula based on current conditions,” said Roberts.

In Shelby County v. Holder, the Supreme Court evaluated which parts of the Voting Rights Act of 1965 were still needed, which require states and local governments with a history of discrimination to get pre-clearance from the federal government before making any changes to voting laws.

The court heard arguments in February 2013 in the case. Shelby County, Alabama, filed suit in district court, claiming that Section 5 and Section 4(b) of the Voting Rights Act were unconstitutional. Two lower courts then ruled that those sections were constitutional.

Section 5 prohibits selected districts and states from changing their election laws and procedures without getting official approval from the federal government.  Now, a new formula will be needed to enact Section 5.

That provision requires all or parts of 16 states, including virtually the entire Southern region of the United States, to get Justice Department approval before changing election districts, voting rules, and polling locations.

Section 5 made headlines in 2012 when the Justice Department used it to block voter ID laws in Texas and South Carolina, two states that were under the pre-clearance doctrine.

In the past two decades, Justice Department officials have used Section 5 to block more than 2,000 proposed voting changes in the pre-clearance states.

As part of the law is sent back to Congress to be changed, the pre-clearance formula could face tough odds of returning in a revised law.

Another key part of the Voting Rights Act wasn’t under consideration in February: Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in a minority group.

So what happens when the Voting Rights Act is sent back to the House and Senate to amend?

Last week, the National Journal said Congressional Republicans have kept a low profile on the issue and their public reaction is far from certain.

“We don’t know yet because Congressional Republicans haven’t weighed in on a pending case although many Democrats submitted amicus briefs on behalf of keeping the law just where it is, including Senate Majority Leader Harry Reid,” said the National Journal’s Matthew Cooper.

The Democrats will likely have a quick response, but changes to the Voting Rights Act would join a jammed-packed agenda in Congress that includes immigration, the budget, gun control, the sequester, the Farm Bill and more laws that have stalled in Washington.

Recent Stories On The Supreme Court

Town Hall: McConnell and Rosen on Affirmative Action

Town Hall: Chemerinsky and Clegg on Affirmative Action

Affirmative action: Timeline of 10 major cases and orders

Updated: Our Supreme Court scorecard

Sign up for our email newsletter