Shelby County v. Holder 2013

The Voting Rights Act of 1965 was the most consequential civil rights statute of the twentieth century. Its core innovation was Section 5. A jurisdiction that fell under the coverage formula in Section 4(b) could not change any voting rule, from the location of a polling place to the boundaries of a district to the hours of early voting, without first submitting the change to the Department of Justice or to a three-judge federal court in Washington and receiving preclearance that the change would not have a discriminatory purpose or effect. The coverage formula targeted jurisdictions with documented histories of voter suppression, identified by low registration and turnout and by the past use of literacy tests and other qualifying devices. Most of the originally covered jurisdictions were in the former Confederacy.

Between 1965 and 2013, preclearance blocked thousands of proposed voting changes. The Justice Department issued formal objections to more than 1,000 proposed changes outright. Many thousands more were withdrawn or modified once their sponsors learned they would not receive preclearance. Scholars of the Act have consistently described Section 5 as the most powerful single provision of civil-rights law in American history. Congress had reauthorized the Act four times, in 1970, 1975, 1982, and 2006. The 2006 reauthorization passed the Senate 98-0 and the House 390-33, with a substantial factual record and a twenty-five-year renewal of the coverage formula.

Shelby County, Alabama, sat within the coverage formula. It was an overwhelmingly white suburban county south of Birmingham. It was represented in the litigation by attorney Frank Ellis Jr., the longtime county attorney, and by lead counsel Bert Rein of the Washington firm Wiley Rein. The legal strategy was deliberate. Rather than attack Section 5 head-on, the challenge targeted Section 4(b), the coverage formula. The argument was that the data underlying the formula, derived from registration and turnout figures from 1964, 1968, and 1972, was too old to support the continuing imposition of preclearance on any jurisdiction in 2013. The case was argued on February 27, 2013. Attorney General Eric Holder defended the statute as respondent.

On June 25, 2013, the Supreme Court ruled 5-4. Chief Justice John Roberts wrote for the majority. His opinion held that the equal sovereignty of the states was a foundational constitutional principle that required Congress to treat states alike unless there was a compelling current reason to do otherwise. The coverage formula, the majority held, rested on conditions from forty years earlier. Things have changed in the South, Roberts wrote. Voter registration and turnout numbers in covered states were now comparable to those in uncovered states. The formula therefore no longer reflected current conditions. Section 4(b) was unconstitutional. Section 5 remained on the books but had no formula to trigger it. In practical terms, preclearance ended on June 25, 2013.

Justice Ginsburg dissented. Her opinion was joined by Justices Breyer, Sotomayor, and Kagan. She observed that Congress in 2006 had compiled a fifteen-thousand-page record documenting continuing voting discrimination in covered jurisdictions. She pointed out that the majority itself had cited preclearance's success in blocking discriminatory changes, changes that had in fact been proposed as recently as 2012, as evidence that preclearance was no longer needed. Her central metaphor became the most-quoted line in any dissent of the decade. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes, she wrote, is like throwing away your umbrella in a rainstorm because you are not getting wet.

The response from the affected jurisdictions was immediate. Within two hours of the ruling, Texas Attorney General Greg Abbott announced that Texas's voter ID law, SB 14, which a federal court had blocked under preclearance a year earlier, would take effect. It did so within twenty-four hours. Within a month, North Carolina enacted an omnibus voting-restriction statute that a federal appeals court later described as targeting African Americans with almost surgical precision. That ruling came three years later, under Section 2 of the Voting Rights Act, the provision that remained in force and required case-by-case post-enactment litigation rather than preclearance review.

Representative John Lewis of Georgia released a statement the day of the ruling. Lewis had been beaten on the Edmund Pettus Bridge on Bloody Sunday in March 1965, during the Selma-to-Montgomery march that produced the Voting Rights Act. He called the decision a dagger into the heart of the Voting Rights Act, and said that the Court had stuck its finger in the eye of everyone who died and bled to secure the right to vote. Lewis would continue to reintroduce restoration legislation every session until his death in 2020. The bill now carries his name.

The Leadership Conference on Civil and Human Rights documented the practical consequences in a 2019 report titled Democracy Diverted. Between 2013 and 2018, approximately 1,688 polling places had been closed in previously covered counties. The closures were concentrated in majority-Black and majority-Latino precincts. Voters in some rural counties now had to travel substantially farther than they had before to reach a polling place, with the increase falling disproportionately on Black voters. Voter ID laws, proof-of-citizenship requirements, and signature-match rules proliferated in states that had previously been unable to enact them.

Litigation continued. Section 2 of the Voting Rights Act, which prohibits voting practices that result in racial discrimination and applies nationwide, remained in force. Plaintiffs who would previously have relied on preclearance were now forced to bring post-enactment lawsuits, often after elections had already been held under the challenged rules. The litigation was slower, more expensive, and less comprehensive than preclearance. It was also, in several important cases, successful. Federal courts ordered the redrawing of congressional and legislative maps in Alabama, North Carolina, and Louisiana under Section 2 in the decade after Shelby County. Allen v. Milligan, decided by the Supreme Court in 2023, upheld the Section 2 framework against a challenge that would have further narrowed it.

The political response produced the John R. Lewis Voting Rights Advancement Act, which proposed a restored preclearance framework with an updated coverage formula based on recent violations rather than 1960s data. The bill passed the House of Representatives in 2019 and again in 2021 and 2022. It has not yet cleared the Senate. Advocacy groups across the coalition that produced the 1965 Act continue to push for its passage. Ginsburg's dissent, like Harlan's 130 years earlier, is now routinely cited in congressional testimony, law review articles, and every major voting-rights brief filed in the federal courts.

Texas implemented its previously-blocked voter ID law, SB 14, within twenty-four hours of the ruling. North Carolina passed an omnibus voting-restriction statute within weeks. More than twenty-five states enacted new voting restrictions of some kind in the twenty-four months that followed.

Between 2013 and 2018, approximately 1,688 polling places were closed in counties that had previously been covered by preclearance. The closures were concentrated in majority-Black and majority-Latino precincts. The Leadership Conference on Civil and Human Rights documented the travel-distance increases in its 2019 Democracy Diverted report.

Litigation shifted from preclearance review to post-enactment Section 2 challenges. Federal courts ordered the redrawing of congressional and legislative maps in Alabama, North Carolina, and Louisiana under Section 2 in the decade after Shelby County. Allen v. Milligan (2023) upheld the Section 2 framework against a further narrowing.

The John R. Lewis Voting Rights Advancement Act passed the House of Representatives in 2019, 2021, and 2022. It has not yet cleared the Senate. The bill would restore preclearance with a coverage formula based on recent voting-rights violations.

Black voter turnout in the affected jurisdictions rose, rather than fell, in the elections that followed. Organizing filled much of the legal gap. The 2020 and 2021 Georgia elections, in particular, produced record Black turnout and sent Raphael Warnock to the U.S. Senate as Georgia's first Black senator.