Voting Rights Act Decision Effectively Ends 'Preclearance,' UVA Law Professor Says

The U.S. Supreme Court on Tuesday struck down Section 4 of the Voting Rights Act, a key provision of the 1965 law that requires nine states and a number of localities with a history of discrimination to receive approval from federal authorities before changing their voting laws.

The majority opinion in Shelby County v. Holder, written by Chief Justice John G. Roberts, held that the law's formula used to determine which states must receive "preclearance" is no longer constitutional.

A.E. Dick Howard is the White Burkett Miller Professor of Law and Public Affairs at the University of Virginia and is an expert on constitutional law and the Supreme Court.

"The court leaves Section 5 (the preclearance section) standing. It strikes down Section 4 (the coverage formula). Lest one suppose that this is a way of giving something to both sides, one should note that, without Section 4, Section 5 has no practical effect. The court might have gone all the way (as many critics of the Voting Rights Act would like it to do) and hold that Congress lacks the power under the Constitution to require a state or locality to get federal permission before it enacts changes in voting laws and procedures. The court did not go that far in today's opinion. But, until there is a valid coverage formula, preclearance under section 5 can't be required of states or localities.

A.E. Dick Howard

"The court's opinion in the Shelby County case reminds us how far we have come from the days of the Warren Court. In the 1960s — the heyday of civil rights legislation — the court was highly deferential to Congress. If Congress saw a national problem turning on matters of race, then the court went out of its way not to stand in the way of such remedies as Congress might provide. Such is the logic of decisions like South Carolina v. Katzenbach (1966). That was yesterday. In our time, we now know that Congress may hold extensive hearings, but the court has made clear that the court will decide for itself whether the remedy Congress has provided is congruent with the perceived problem. Self-confidence is not lacking in the modern court.

"Congress may, of course, decide to devise a new coverage formula — one that its members hope would satisfy the court. But how much confidence should we have that Congress — so unable to grapple with other problems of the moment — could agree on a new formula — especially as all 50 states, and not just those covered by the present act, would be in play?

"The court leaves Section 2 of the Voting Rights Act intact. That is the section under which challenges may be lodged against state or local practices that are complained of as abridging the right to vote on account of race or color. But this would require individual lawsuits, with the burden being on the plaintiff (unlike preclearance, which obliges the covered jurisdiction to make its case). Such lawsuits take time and money, proceeding case by case. 

"Today's decision should come as no surprise. The court ducked the constitutional issue in the Northwest Austincase (2009), but in that case Chief Justice Roberts let us know that he saw 'serious constitutional concerns' with the Voting Rights Act. Today those concerns have become a constitutional ruling."

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