Voting Rights and Democracy

Shelby County v. Holder

Case Summary

Shelby County, Alabama v. Holder involved a challenge to Section 5 of the Voting Rights Act, which requires jurisdictions that have a history of engaging in racial discrimination in voting to obtain federal permission – “pre-clearance” – before altering their voting laws and regulations. Shelby County, Alabama argued that Section 5 was an outdated and unnecessary infringement on state sovereignty.

On November 22, 2010, CAC filed a brief in the federal district court for the District of Columbia in Shelby County v. Holder. Shelby County involves a constitutional challenge to the preclearance provision of the Voting Rights Act of 1965 (VRA), which requires certain jurisdictions with a history of racial discrimination in voting to obtain federal permission before altering their voting laws or regulations.

Conservative Justices on the Supreme Court have been working to limit Congress’s power to protect civil rights for more than a decade. In 2006, Congress voted overwhelmingly to reauthorize the VRA; in 2008, the Supreme Court in NAMUDNO v. Holder ducked a constitutional challenge to that reauthorization and the Act’s preclearance provision. Shelby County could be the case that brings this issue back before the Court, and CAC’s brief brought powerful arguments, rooted in text and history, before the district court.

CAC’s brief demonstrated that the text and history of the Fifteenth Amendment give Congress broad authority – no less sweeping than Congress’s other expressly enumerated powers – to make sure the right to vote free from racial discrimination is fully enjoyed by all Americans. History shows that the Framers of the Fifteenth Amendment were fully aware that Congress needed broad authority to enact prophylactic legislation, such as the Voting Rights Act, to root out all forms of racial discrimination in voting.

Our brief drew from our own brief in NAMUDNO as well as our work on The Shield of National Protection (our text and history narrative concerning Congress’s power to enforce the Civil War Amendments).

On September 21, 2011, District Judge John D. Bates – an appointee of President George W. Bush – issued a 151-page opinion thoroughly rejecting Shelby County’s challenge to the Act’s preclearance requirement. In his opinion, Judge Bates echoed arguments made by CAC in our brief, recognizing “the preeminent constitutional role of Congress under the Fifteenth Amendment to determine the legislation needed to enforce it.”

Shelby County appealed Judge Bates’s ruling to the United States Court of Appeals for the District of Columbia Circuit.

On December 8, 2011, CAC filed an amici curiae brief in the circuit court.

On May 18, 2012, the U.S. Court of Appeals for the D.C. Circuit affirmed the decision of the District Court upholding the constitutionality of Section 4(b) and Section 5.

On July 20, 2012, Shelby County appealed the D.C. Circuit’s ruling to the Supreme Court, which granted Shelby County’s petition for a writ of certiorari on November 9, 2012.

On February 1, 2013, CAC filed an amici curiae brief on behalf of leading scholars on the Constitution and the Reconstruction Amendments, including Professors Jack M. Balkin, Guy-Uriel Charles, Luis Fuentes-Rohwer and Adam Winkler, urging the Supreme Court to uphold the constitutionality of the pre-clearance requirement of the Voting Rights Act. Discussing the text and history of the Thirteenth, Fourteenth and Fifteenth Amendments, our brief demonstrated that the Reconstruction Framers gave Congress broad power to protect individual rights, including the right to vote free from racial discrimination and infringement by the states. The text and history of the Fifteenth Amendment, our brief showed, give Congress the power to enact prophylactic legislation, such as the Voting Rights Act, to ensure that the right to vote is actually enjoyed by all persons regardless of race.

On June 25, 2013, in a sharply divided 5-4 decision, the Supreme Court invalidated the coverage formula contained in Section 4 of the Voting Rights Act, which identified the jurisdictions subject to federal pre-clearance. The majority opinion, authored by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Alito and Thomas, held that the coverage formula was unconstitutional because it relied on out-of-date evidence. In a powerful dissent, Justice Ginsburg (joined by Justices Breyer, Sotomayor and Kagan) argued that the majority’s ruling could not be squared with the Fifteenth Amendment. As we argued in our brief, Justice Ginsburg demonstrated that the text and history of the Fifteenth Amendment supported Congress’ authority to enact legislation that specifically targeted potential state abuses, explaining that the Fifteenth Amendment was one of three Reconstruction Amendments designed to “arm Congress with the power and authority to protect [its citizens] from violations of their rights by the States.”

Read CAC’s post-argument commentary here, and read our reaction to the Supreme Court’s Shelby County decision here, here and here.

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