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SCOTUS strikes portion of Voting Rights Act; will hand down term’s final decisions Wednesday

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The Supreme Court of the United States held Section 4 of the Voting Rights Act is unconstitutional Tuesday, ruling that its formula can no longer be used as a basis for subjecting jurisdictions to pre-clearance. The case stems from Shelby County in Alabama asking for a declaratory judgment that sections 4(b) and 5 are facially unconstitutional and a permanent injunction against their enforcement.

The Voting Rights Act of 1965 was created to address racial discrimination in voting. Section 4 provides a “coverage formula,” defining the “covered jurisdictions” as states or political subdivisions that maintained tests or devices as perquisites to voting and had low voter registration or turnout. Section 5 says no change in voting procedures can take effect until approved by authorities in Washington, D.C. The states covered by the original enactment were Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia, but subsequent amendments of the Act added other states or portions of other states and it now applies to nine states and several additional counties.

The coverage formula and preclearance requirement have been reauthorized over the years, but the coverage formula has not changed.

The 5-4 decision in Shelby County v. Holder, 12-96, delivered by Chief Justice John Roberts, held Section 4’s formula is unconstitutional in light of current conditions. The provisions of Section 5 only apply to those jurisdictions singled out by Section 4.

“Nearly 50 years later, things have changed dramatically,” Roberts wrote. “The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years.”

“Striking down an Act of Congress ‘is the gravest and most delicate duty that this Court is called on to perform.’ We do not do so lightly,” he continued. “That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader con¬cerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.”

Associate Justice Clarence Thomas wrote a concurring opinion in which he explained that he would find Section 5 unconstitutional as well. Associate Justice Ruth Bader Ginsburg authored a dissent, joined by Associate Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. She wrote, “The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it, history repeats itself.”

The justices also handed down:
•    Adoptive Couple v. Baby Girl, 12-399, which held assuming for the sake of argument that the biological father is a “parent” under the Indian Child Welfare Act of 1978, neither Section 1912(f) nor (d) bars the termination of his parental rights; and
•    Koontz v. St. Johns River Water Management District, 11-1447, which held the government’s demand for property from a land-use permit applicant must satisfy the Nollan/Dolan requirements even when it denies the permit.

The Supreme Court will meet for the last time this term at 10 a.m. Wednesday to hand down decisions, which likely will include the two cases addressing same-sex marriage and the Defense of Marriage Act: Hollingsworth v. Perry, 12-144, and United States v. Windsor, 12-307.

The other case expected to be handed down is Sekhar v. United States, 12-357, which asks whether the recommendation of an attorney who is a salaried employee of a governmental agency, in a single instance, is tangible property that can be the subject of an extortion attempt under 18 U.S.C. Section 1951 and Section 875(d).

 

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  1. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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