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Section 4 of the Voting Rights Act is Unconstitutional

Written by John Tamasitis

In a stunning opinion, authored by Chief Justice Roberts, the Supreme Court of the United States (SCOTUS) struck down Section 4 of the Voting Rights Act of 1965 (“VRA”) in Shelby County v. Holder.  The 5-4 decision, decided primarily on ideological lines, held that Section 4’s coverage formula for determining which states and political subdivisions would be required to submit all changes to their voting laws for federal approval, pursuant to Section 5 of the VRA, was unconstitutional as applied.  The court reinforced the main points of its decision by highlighting the fact that the recent formula under Section 4 had not changed since 1975.  That formula extended coverage to jurisdictions who implemented voting tests and had less than fifty percent voter registration and/or turnout for the 1972 presidential election.  According to the court, the coverage formula was “based on decades-old data and eradicated practices. Indeed, the coverage formula had remained static since the 1970s because Congress failed to continuously update it to fit the current political landscape.  Thus, while the VRA’s most recent renewal occurred in 2006, and SCOTUS held that the formula was no longer justified by current political conditions.

In fact, SCOTUS noted that “covered jurisdictions” actually “have far more black officeholders as a portion of the black population than do uncovered ones.”  Moreover, the court stated that the formula imposed “substantial federalism costs” on “covered jurisdictions” and violated the principles of “equal sovereignty.”  Indeed, the majority expressed deep concerns with Section 4’s intrusion into the basic concept of federalism and the principles of equal sovereignty.  According to the majority, the ability of the federal government to effectively block certain states from enacting their own voting requirements was something that did not fit with the basic construct of the Constitution as envisioned by the Framers:

The Federal Government does not, however have a general right to review and veto state enactments before they go into effect.  A proposal to grant such authority to ‘negative’  state laws was considered at the Constitutional Convention, but rejected in favor of allowing state laws to take effect, subject to later challenge under the Supremacy Clause.

SCOTUS reasoned that the Fifteenth Amendment, under which the VRA was enacted, was “not designed to punish for the past; its purpose [was] to ensure a better future.”  As a result, if Congress chose to divide the States, it must do so based on “current conditions.”

Nevertheless, this decision did not come out of left field.  Rather, Chief Justice Roberts and the majority of the court expressed similar concerns in Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193 (2009).  In that case, SCOTUS chose to decide a Texas voting law on other grounds.  Yet, the majority expressed many of the same concerns that were voiced by the majority in Shelby County.  One could argue that SCOTUS, in its decision in Northwest Austin Municipal Util. Dist. No. One, warned Congress to update the formula.  As a matter of fact, SCOTUS hinted at such a scenario in its opinion.  SCOTUS justified its decision by reasoning that “Congress could have updated the coverage formula [after Northwest Austin Municipal Util. Dist. No. One], but did not do so.”  That failure left the Court “with no choice,” but to declare Section 4 unconstitutional.

To be sure, SCOTUS did not touch Section 2 of the VRA that created a permanent ban on racially discriminatory practices in elections and outlawed any “test or device” that could be used to discriminate against voters at the polls.  The court also did not strike down Section 5, which requires those jurisdictions covered under Section 4 to submit all changes to its voting laws to the federal government for approval.  Rather, the court instructed Congress to provide an updated formula to determine which jurisdictions should fall under the Section 5 umbrella and required that the Section 4 formula be more fitting to the current political landscape and the multi-cultural times in which we live today.

John Tamasitis is the Fourth Circuit Editor for Volume 65.  The South Carolina Law Review published his article entitled “‘Things Have Changed in the South’: How Preclearance of South Carolina’s Voter Photo ID Law Demonstrates that Section 5 of the Voting Rights Act Is No Longer a Constitutional Remedyin Volume 64, Book 4. For those who are not subscribed to the South Carolina Law Review and are interested in the arguments surrounding the constitutionality of the VRA, please note that his article is available for purchase on Amazon and Barnes & Noble.     

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