Review of SCOTUS Decisions - End of 2012-2013 Term - Shelby County v. Holder

The final week in each SCOTUS term is always very interesting in light of the fact that the Court announces its most important and "blockbuster" decisions at that time.  Some say they "save their best for last."  This year is no different.  The Court released decisions addressing:

Affirmative Action
The Voting Right Act of 1965
The Indian Child Welfare Act
Same Sex Marriage

The decision addressing Affirmative Action, Fisher v. University of Texas at Austin, 570 U.S. ____ (2013), is, in essence, a reaffirmation of the Court's holding in Grutter v. Bollinger, 539 U.S. 306 (2003).  

The decision addressing the Indian Child Welfare Act,Adoptive Couple v. Baby Girl, 570 U.S. ____ (2013), in essence, clarifies when a heightened showing that serious harm to an Indian child must be established; when remedial efforts must be undertaken and when "Indian" placement must be given preference.

The decisions addressing the Voting Rights Act, Shelby County, Alabama v. Holder, 570 U.S. ____ (20130, and Same Sex Marriage, Hollingsworth v. Perry, 570 U.S. ____ (2013) and United States v. Windsor, 570 U.S. ___ (2013)  are considered more groundbreaking and from the discussion in the public domain may well have the greatest impact on the daily lives of Americans in both the near and distant future.

Today, I would like to look at and analyze Shelby County, Alabama v. Holder.

In a 5-4 decision, authored by Chief Justice Roberts, the Court addressed Sections 2, 4 and 5 of the Voting Rights Act of 1965 (VRA).

In addressing Section 4, the Court held Section 4, which provides a "coverage formula" defining the "covered jurisdictions" -- States or political subdivisions that maintained tests or devices as prerequisites to voting and had low voter registration or turnout n the 1960's and early 1970's -- to be unconstitutional.  In essence, the Court held that the extraordinary measures in the VRA (requiring "covered jurisdictions" to obtain preclearance from the federal government before enacting changes in voting procedures) to address the extraordinary problems in the 1960's in "covered jurisdictions" (racial discrimination in voting that was an insidious and pervasive evil) was no longer justified.

In addressing Section 2, the Court held that Section 2, which bans any "standard, practice or procedure" that "results in denial or abridgment of the right of any citizen...to vote on account of race or color"  remains constitutional and remains intact and in effect. It applies nationwide and is permanent. Section 2 provides the basis for any lawsuit against any State or political subdivision that enacts any such standard, practice or procedure that results in denial or abridgment of the right of any citizen to vote on account of race or color.

In addressing Section 5, the Court held that Section 5, which provides that no change in voting procedures can take effect in those "covered jurisdictions" until approved by the federal government -- known as preclearance -- remains in effect.  The Court issued no holding on Section 5 itself.  However, unless and until Congress re-enacts Section 4 based on current data and establishes new "covered jurisdictions," the Section 5 preclearance requirement has no applicability.

The rationale for the Court's determination that Section 4 is unconstitutional is that times have changed and the data relied upon to establish "covered jurisdictions" no longer supports the original designations.  In other words, the current burdens imposed on "covered jurisdictions" are no longer justified by current needs.  Furthermore, if the basis for the "covered jurisdiction " determination no longer exists, to continue the need for preclearance under Section 5 is unwarranted.  While the Court does not directly say it, the Court seems to imply that given the lack of a current need for "covered jurisdictions" that a continuation of Section 4 amounts to an infringement on the power of the State to regulate elections under the 10th Amendment -- that Section 4 is extraordinary legislation no longer justified by exceptional conditions.  In other words, what made sense almost 50 years ago no longer makes sense.  The Court set forth that "There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago."

The Court concludes the decision setting forth, "Congress may draft another formula based on current conditions. Such formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an 'extraordinary departure from the traditional course of relations between the States and the Federal Government.'...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."

Justice Thomas wrote a concurring opinion.  In it he would find that both Sections 4 and 5 unconstitutional.  He holds that these sections are "extraordinary" and "unprecedented."

Justice Ginsberg wrote a dissenting opinion.  She writes that the Court has found that the very success of Section 5 demands its dormancy and that the Court terminates the remedy that proved to be best suited to block that discrimination.  She writes that the success of the VRA is due to the requirement of Section 5 preclearance in "covered jurisdictions.  She sets forth multiple examples of discriminatory changes attempted in "covered jurisdictions" that were blocked by preclearance.  She writes that "the Court strikes Section 4(b)'s coverage provision because, in its view, the provision is not based on 'current conditions.'...It discounts, however, that one such conditions was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways....Volumes of evidence supported Congress' determination that the prospect of retrogression was real.. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."  She further writes that the record supporting the 2006 reauthorization of the VRA is also extraordinary.  She concludes, "after exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including coverage provision, with overwhelming bipartisan support.  It was the judgment of Congress that '40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution....That determination of the body empowered to enforce the Civil War Amendments 'by appropriate legislation' merits this Court's utmost respect.

Some people believe that this decision will allow States or political subdivisions to enact racially discriminatory voter suppression legislation with impunity.  Such should not be the case.  Any standard, practice or procedure that results in denial or abridgment of the right of any citizen to vote on account of race or color will still violate the VRA.  What this decision does change is how alleged violations will be addressed. Instead of preclearance before enactment, the remedy now will be a federal lawsuit after enactment, under Section 2.   It can be anticipated that the lawsuit will seek an injunction, preventing the implementation of law, until its constitutionality is determined.