Enforcing the Voting Rights Act after Shelby County

January 13, 2014

Supreme Court Building(Editors note:  Over the next weeks we will be featuring posts from our Westlaw Editorial team. This is the team that analyzes cases and statutes and Headnotes and the rest of our editorial enhancements. Enjoy the series:  Westlaw Editorial’s Top Cases of 2013)

After a 5-4 decision from the Supreme Court in 2013, one avenue for invoking the Voting Rights Act’s (VRA) requirement of federal preclearance, for changes to election laws and procedures in “covered” States and political subdivisions with a history of discrimination against minority voters, is dead, unless Congress takes action to update the formula for defining the covered jurisdictions. Yet federal courts still have the power under the VRA to require preclearance as a remedy, and the Department of Justice (DOJ) has exercised its power under the VRA to seek injunctive relief against two States that had been covered jurisdictions under the now-invalid coverage formula.

On the second-to-last day of the Court’s 2012-2013 Term, Chief Justice Roberts delivered the majority opinion for the Court in Shelby County, Ala. v. Holder, 133 S.Ct. 2612, 186 L.Ed.2d 651, striking down, as unconstitutional, the coverage formula that Congress reauthorized in 2006, for another 25 years. The reauthorized formula was based on eradicated practices and decades-old data, so it did not reflect current needs that justified the unequal treatment of the covered jurisdictions or that justified an extraordinary departure from the traditional course of relations between the States and the federal government. “Congress — if it is to divide the States — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” Chief Justice Roberts wrote.

The Court did not declare unconstitutional the preclearance provision itself, which is Section 5 of the VRA, 42 U.S.C.A. § 1973c. However, because the coverage formula, which is Section 4(b) of the VRA, 42 U.S.C.A. § 1973b(b), is no longer operative, there are no covered jurisdictions that are subject to preclearance under Section 5.

The decision did not address Section 3(c) of the VRA, which provides a so-called “bail-in” or “pocket trigger” mechanism that allows federal courts to impose preclearance on States and political subdivisions that have violated the Fourteenth or Fifteenth Amendments, as a remedy in suits under the VRA. See Note, The Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance, 119 Yale L.J. 1992 (June 2010).

Also, Section 2(d) of the VRA, 42 U.S.C.A. § 1973j(d), authorizes the Attorney General to file civil actions on behalf of the United States, seeking injunctive relief for violations of the VRA. That power has been invoked in cases pending in North Carolina and Texas.

In North Carolina, a Voter Information Verification Act, requiring every voter to produce a photo I.D., was introduced in the legislature almost three months before the Supreme Court’s June 25th decision, and was signed by the Governor on August 12, 2013. See, H.B. No. 589, S.L. 2013-381; West’s N.C.G.S.A. §§ 163-166.13, 163-166.14.

The Attorney General, invoking Section 2(d) of the VRA, filed suit on September 30, 2013, See U.S. v. North Carolina, 2013 WL 5422313 (M.D.N.C. 2013), retrieved from FED-FILING-NC database.

Similarly, a Texas photo I.D. law that took effect on January 1, 2012, known as S.B. 14, was challenged by the Attorney General in a suit filed on August 22, 2013. See U.S. v. Texas, 2013 WL 4479214 (S.D.Tex. 2013), retrieved from FED-FILING-TX database; V.T.C.A., Election Code § 63.0101.