Commentary:

The decision by the United States Su-preme Court in Shelby County v. Holder delivered a devastating set-back for civil rights in America. The Court ruled that the coverage formula in Section 4 of the Voting Rights Act is unconstitutional for purposes of identifying the jurisdictions that must submit voting changes for federal review (preclearance) before they can be implemented. The Court did not find the Section 5 preclearance requirement itself unconstitutional, but the ruling appears to bring federal review of voting changes under Section 5 to a halt until Congress enacts a new coverage formula.

Shelby County v. Holder involves the 2006 reauthorization of Sections 4 and 5 of the Voting Rights Act of 1965 (VRA). Section 5 of the VRA requires certain states and sub-jurisdictions with a persistent history of racial voting discrimination to obtain preclearance by the Department of Justice or a federal court before they may enforce any changes in voting practices or procedures. Section 4 of the VRA contains the formula that identifies those jurisdictions subject to the preclearance requirement of Section 5. To obtain preclearance, a jurisdiction must demonstrate that a proposed voting change neither has a discriminatory purpose nor a discriminatory effect. In April 2010, Shelby County, Alabama (a largely white suburb of Birmingham) filed suit in federal court in Washington, D.C., asking that Section 5 be declared unconstitutional. Both the federal district court and the D.C. Circuit Court of Appeals rejected Shelby County’s claims before the Supreme Court agreed to hear the case.

“This decision disregards the documented history of ongoing voting discrimination in the covered states and paralyzes Section 5, which has blocked thousands of racially discriminatory voting practices and procedures before they could ever take effect,” said Lawyers’ Committee President and Executive Director Barbara Arnwine. “Civil rights and civic organizations must now unite with the American people – fighting new discriminatory voting laws lawsuit by lawsuit and state by state – until Congress acts decisively to repair what has been one of the most effective civil rights laws ever passed.”

Chief Justice Roberts wrote the opinion for the Court, joined by Justices Scalia, Kennedy, Thomas and Alito. Justice Thomas filed a concurring opinion, and Justice Ginsberg filed a dissenting opinion, joined by Justices Breyer, Sotomayor, and Kagan.

The Lawyers’ Committee represents Bobby Lee Harris, a Shelby County resident and former member of the Alabaster, Alabama, town council, who intervened in the case in August 2010 to defend the constitutionality of Section 5. In September 2011, the U.S. District Court for the District of Columbia upheld the constitutionality of Congress’ 2006 reauthorization of Section 5 and dismissed the case. In May 2012, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court’s ruling, by a vote of two to one. Both courts conducted detailed reviews of the massive evidentiary record before Congress in 2006 and concluded that Section 5’s review process remains necessary due to the record of ongoing recent voting discrimination in the covered jurisdictions.

“The Supreme Court has effectively gutted one of the nation’s most important and effective civil rights laws,” said Lawyers’ Committee Chief Counsel Jon Greenbaum. “Minority voters in places with a record of discrimination are now at greater risk of being disenfranchised than they have been in decades. Today’s decision is a blow to democracy.

Jurisdictions will be able to enact policies which prevent minorities from voting, and the only recourse these citizens will have will be expensive and time-consuming litigation.”

This ruling shifts the cost, delay and other burdens involved in blocking discriminatory election practices onto minority citizens until Congress enacts a new coverage formula. Section 5 has been extraordinarily effective at blocking discriminatory voting changes before they could harm minority voters. Relying upon traditional litigation in the future makes it far more likely that discriminatory voting changes will be put into effect, and the damage done to those fundamental constitutional rights can never fully be undone after the fact.

The Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), submitted the commentary. The Lawyers’ Committee is a nonpartisan, nonprofit organization that was formed in 1963 at the request of President John F. Kennedy to involve the private bar in providing legal services to address racial discrimination. For more information about the Lawyers’ Committee, visit www.lawyerscommittee.org.