Shelby County, Alabama was covered by §4(b) of the Voting Rights Act of 1965 (“the Act”). Plaintiff challenged both § 4(b) and § 5 of the Act as unconstitutional on its face.
The coverage formula found in Section 4(b) of the Act is unconstitutional because it was based on data over 40 years old, making it no longer responsive to current needs and thus an impermissible burden on the constitutional principles of federalism.
The Voting Rights Act of 1965 (the “Act”) was enacted as a response to the nearly century-long history of voting discrimination. Section 5 prohibits eligible districts from enacting changes to their election laws and procedures without gaining official authorization. Section 4(b) defines the eligible districts as ones that had a voting test in place as of November 1, 1964 and less than 50% turnout for the 1964 presidential election. Such districts must prove to the Attorney General or a three-judge panel of a Washington, D.C. district court that the change “neither has the purpose nor will have the effect” of negatively impacting any individual’s right to vote based on race or minority status. Section 5 was originally enacted for five years, but has been continually renewed since that time.
Shelby County, Alabama, filed suit in district court, seeking both a declaratory judgment that Section 5 and Section 4(b) are unconstitutional and a permanent injunction against their enforcement.
Does the renewal of Section 5 of the Act under the constraints of Section 4(b) exceed Congress’ authority under the Constitution?
Yes, the renewal of Section 5 of the Act under the constraints of Section 4(b) exceeds Congress’ authority under the Constitution.
A study of lawsuits in covered and noncovered jurisdictions indicated that racial discrimination in voting remains concentrated in the jurisdictions singled out for preclearance. Moreover, the evidence before Congress indicated that voting in covered jurisdictions was more racially polarized than elsewhere in the country–yet, the Court did not even deign to grapple with the legislative record.
In 2008, for example, the city of Calera, located in Shelby County, requested preclearance of a redistricting plan that would’ve eliminated the city’s sole majority-black district, which had been created pursuant to the consent decree. Although the DOJ objected to the plan, Calera forged ahead with elections based on the unprecleared voting changes, resulting in the defeat of the incumbent African-American councilman who represented the former majority-black district. The city’s defiance required the DOJ to bring a Section 5 enforcement action that ultimately yielded appropriate redress, including restoration of the majority-black district. These and other recent episodes forcefully demonstrate that Section 5’s preclearance requirement is constitutional as applied to Alabama and its political subdivisions. This conclusion should suffice to resolve this case.
Section 4 of the Act is unconstitutional. The Act imposes current burdens that are no longer responsive to the current state of affairs in the voting districts in question. Although the constraints this section places on specific states made sense in the 1960s and 1970s in areas where voting discrimination had been most flagrant, they no longer make sense and now represent an unconstitutional violation of the power to regulate elections that the Constitution reserves for the states. The Court also held that the formula for determining whether changes to a state’s voting procedure should be federally reviewed is now outdated and does not reflect the changes that have occurred in the last 50 years in narrowing the voting turnout gap in the states in question. Nearly 50 years later, things have changed dramatically – in the covered jurisdictions, voter turnout and registration rates now approach parity and blatantly discriminatory evasion of federal decrees are rare.
Thus, the coverage formula in Section 4 of the Act is unconstitutional. However, Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying an extraordinary departure from the traditional course of relations between the states and the federal government.