570 U.S. 529, 133 S. Ct. 2612, 186 L. Ed. 2d 651 (2013)
The Voting Rights Act of 1965 included Section 2, which banned any standard, practice, or procedure resulting in denial or abridgement of the right to vote on account of race and applied nationwide on a permanent basis.1
Section 4(b) provided the coverage formula. It defined covered jurisdictions as States or political subdivisions that maintained tests or devices as prerequisites to voting and had less than 50 percent voter registration or turnout in the 1964 presidential election.2 Section 5 required that no change in voting procedures in covered jurisdictions could take effect until approved by federal authorities in Washington, D.C. The initial covered jurisdictions included Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and 39 counties in North Carolina and one in Arizona.34
Congress reauthorized the Act in 1970 for five years and extended the coverage formula to jurisdictions with a voting test and less than 50 percent registration or turnout as of 1968, adding counties in California, New Hampshire, and New York.5 In 1975, Congress reauthorized the Act for seven years, extended coverage to 1972 data, amended the definition of test or device to include English-only materials in certain language-minority areas, and brought in Alaska, Arizona, Texas, and additional counties in other states.6 The 1982 reauthorization lasted 25 years without changing the coverage formula but allowed political subdivisions to bail out if they met specified conditions over the prior ten years.7
In 2006, Congress reauthorized the Act for another 25 years without altering the coverage formula based on 1960s and 1970s data, though it expanded the prohibitions in Section 5 to forbid voting changes with any discriminatory purpose or that diminished the ability of minority citizens to elect their preferred candidates.8 Shortly after that reauthorization, a Texas utility district challenged the Act's constitutionality, and in Northwest Austin Municipal Utility District No. One v. Holder decided in 2009, the Court resolved the case on statutory grounds while expressing serious doubts about the Act's continued constitutionality.9
In 2010, Shelby County, located in the covered jurisdiction of Alabama and which had not sought bailout, sued the Attorney General in Federal District Court in Washington, D.C., seeking a declaratory judgment that Sections 4(b) and 5 are facially unconstitutional along with a permanent injunction against their enforcement.10 The District Court upheld the Act in 2011, finding the evidence before Congress in 2006 sufficient to justify reauthorizing Section 5 and continuing the Section 4(b) coverage formula.11 The D.C. Circuit affirmed in 2012 after surveying evidence including Attorney General objections to voting changes, successful Section 2 suits, federal observers, and the deterrent effect of Section 5.12
Census Bureau data showed that in 1965 the gap between white and black voter registration in the six originally covered States ranged from 22.8 percent in Virginia to 63.2 percent in Mississippi. By 2004 those gaps had narrowed to between negative 3.8 percent and 10.8 percent. By the most recent election African-American voter turnout exceeded white turnout in five of the six States.13 The Attorney General objected to 14.2 percent of proposed voting changes in the first decade after enactment but only 0.16 percent in the last decade before the 2006 reauthorization.14 The Supreme Court granted certiorari in 2012.15
Whether the coverage formula in Section 4(b) of the Voting Rights Act remains constitutional in light of current conditions?16
No. The coverage formula in Section 4(b) is based on decades-old data from the 1960s and 1970s regarding the use of voting tests and low voter registration and turnout.19 Although conditions have dramatically improved, with voter registration gaps narrowing significantly from as high as 63.2 percent in Mississippi in 1965 to between negative 3.8 percent and 10.8 percent by 2004, and African-American voter turnout exceeding white turnout in five of the six originally covered States, Congress did not update the formula when it reauthorized the Act in 2006.20 The formula no longer reflects current conditions of voting discrimination and therefore cannot justify the continued disparate treatment of States.21
The coverage formula in Section 4(b) is unconstitutional and can no longer be used as a basis for subjecting jurisdictions to preclearance under Section 5.22
Related opinions on this issue
Justice Thomas joined the Court’s opinion in full but wrote separately to explain that he would find Section 5 of the Voting Rights Act unconstitutional as well.23 The extensive pattern of discrimination that led the Court to previously uphold Section 5 as enforcing the Fifteenth Amendment no longer exists.24 The conditions that originally justified the preclearance requirement no longer characterize voting in the covered jurisdictions.25
In spite of these improvements, however, Congress increased the already significant burdens of Section 5.26 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.27 While the pre-2006 version of the Act went well beyond protection guaranteed under the Constitution, it now goes even further.28
Whether the Voting Rights Act's preclearance requirement and coverage formula continue to impose current burdens justified by current needs?29
No. The preclearance requirement and coverage formula continue to impose substantial federalism costs by requiring covered States to obtain federal permission before implementing voting changes.32 Yet the record before Congress in 2006 did not demonstrate the pervasive and flagrant discrimination that originally justified the measures in 1965.33 Although the Act has achieved significant progress in increasing minority voter registration and turnout, Congress reenacted a formula based on 40-year-old facts having no logical relation to the present day rather than fashioning a coverage formula grounded in current conditions.34
The coverage formula in Section 4(b) is unconstitutional because it is not justified by current needs and therefore cannot support the continued imposition of preclearance under Section 5.35
Related opinions on this issue
Joined by Justices Breyer, Sotomayor, And Kagan
Justice Ginsburg dissented and would have upheld the coverage formula.36 Congress had amassed a sizable record showing continued need for the preclearance remedy to guard against backsliding.37 The coverage formula continued to identify the jurisdictions with the greatest concentration of voting discrimination based on evidence of successful Section 2 suits and other metrics.38
Second-generation barriers such as racial gerrymandering and at-large voting systems that dilute minority votes justified continued federal oversight.39 Congress rationally determined the remedy should continue to facilitate completion of gains already made.40