The Supreme Court ruled today in favor of Shelby County, rendering unconstitutional the outdated formula that determines which states and jurisdiction are restricted from making changes in their elections without oversight from the federal government. When a state or jurisdiction is deemed subject to preclearance, per section 4 of the Voting Rights Act, it is nearly impossible for it to implement even the most insignificant change to voting regulations without facing costly litigation.
In 2008, the city of Calera in Shelby County annexed several small towns which prompted redistricting of the city’s municipal election districts. Although such a change would be insignificant in most states, Alabama is one of nine southern states subject to preclearance under the Voting Rights Act. As such, any jurisdiction within the state seeking to make “any change in qualifications for voting, or in standard practice or procedure with respect from voting procedures” must seek the approval of the federal government by way of the U.S. Attorney General or the U.S. District Court for the District of Columbia.
When the Voting Rights Act was implemented in 1965, a formula was developed to determine which states or jurisdictions within states should be subject to the stringent preclearance requirements of section 5. Alabama, and the other states designated as “preclearance states,” were identified as areas where racial discrimination was prevalent and where minority voter suppression was apparent; thus, the perception was that these jurisdictions could not be trusted to enact racially neutral changes to elections without involvement from the federal government. Despite the evolution of racial equality in elections and in representation over the past 60 years, section 5 has been repeatedly reauthorized by Congress. The formula used to determine where racial discrimination in elections persists, and thus where Section 5 applies, has never been updated.
The Court agreed with Shelby County that it is unconstitutional for the federal government to continue utilizing an “irrational” and outdated method to trample on certain states’ rights.
The Court’s decision today lies in the Court’s sensitivity to the sovereignty of the states. The Court cited the Tenth Amendment of the Constitution which reserves all powers not delegated to the federal government to the states, including “the power to regulate elections.” While interference with this right was deemed justifiable in the 1960s and 1970s, the Court agreed with Shelby County that it is unconstitutional for the federal government to continue utilizing an “irrational” and outdated method to trample on certain states’ rights. Section 4 is also in conflict with the principle of equal sovereignty among the states, in that the “preclearance states” are presumed to hold discriminatory intent when enacting any voting changes and their authority to do so is thwarted, even where no evidence of actual discrimination exists. The Court pointed to its opinion in Northwest Austin v. Holder, noting that the Voting Rights Act “imposes current burdens and must be justified by current needs.”
While Shelby County may be the face of this challenge, the decision is a historic victory for states’ rights. Because the formula used in section 4 has been declared unconstitutional, section 5 preclearance cannot be utilized until the formula system has been updated by Congress to apply only to jurisdictions posing a present risk for discrimination, not just a history of it. Discrimination by any state is still adequately protected against under section 2 of the Act and the 14th and 15th Amendments. This decision will merely allow the nine “covered states,” including Alabama, to exert the same authority over its elections as every other state in the union and will allow the state to make changes to voting procedures– the same kind of standard changes that are regularly validated in other states—apart from the unsubstantiated whims of the current U.S. Attorney General.
Katherine Robertson serves as senior policy counsel for the Alabama Policy Institute (API). API is an independent, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families. If you would like to speak with the author, please call (205) 870-9900 or email her at [email protected].
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