London, 8 July 2013
On 25 June 2013, the US Supreme Court (the Court) in Shelby County v Holder, struck down, by a five to four majority, section 4 of the Voting Rights Act 1965. Section 4 is a tool which, taken with section 5 of the Act, has reportedly prevented thousands of racially discriminatory changes to voter registration procedures from being introduced in the past 25 years.
By ruling that the formula employed by section 4 to identify states which require federal oversight when changing voter registration processes was unconstitutional, the Court has left important safeguards for ensuring equal access to the electoral process for African-Americans in tatters.
The case was brought by Shelby County (Alabama) which sought a declaratory judgment stating that section 4(b) and section 5 of the Voting Rights Act were unconstitutional. The Voting Rights Act was introduced in 1965 to address entrenched racial discrimination in voting. Section 4 identified certain states or counties with a history of using voter registration tests designed to discriminate against African-American voters. In a measure designed to prevent such practices from continuing, section 5 required these states to seek pre-clearance from federal authorities if they wished to make changes to their voter registration processes. Sections 4 and 5 of the Act were intended to be temporary and were initially scheduled to apply for five years. However, the Act was continually re-authorised by Congress with some small changes made to the coverage formula. From 1982 onwards, it was re-authorised without any changes to the formula.
Shelby County complained that it was unconstitutional that, as a “covered jurisdiction” under section 4 of the Act, it was required to seek pre-clearance before it made any changes to its voter registration process, something which falls within the sovereignty of individual US states. In defending the Act, the government said that the pre-clearance measures provided important protections for minority voting rights and were constitutional. Lower courts upheld the validity of the Act. The Court of Appeals concluded that section 5 was still necessary to protect minority voters and also approved the section 4 coverage formula.
The Supreme Court majority, overturning this decision, held that the situation in relation to minority voting rights was very different compared to 50 years ago and, noting that the formula had not been changed for 50 years, was concerned that the formula was no longer legitimate. In making its decision, the Court appears to have overlooked the fact that Congress, when last re-authorising the Act in 2006, had amassed, what Sherrilyn Hill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, described as “a 15,000 page record supporting its judgment that minority voters in certain places needed specific protections to be able to participate equally in the political process”.
The dissenting Justices, by contrast, considered that Congress had re-authorised the Act in 2006 primarily on the basis that that this would facilitate completion of the impressive gains thus far for minority voting rights and guard against backsliding. The Justices felt that the decision was well within Congress’ province to make and should have gained the “unstinting approbation” of the Court. They said that “[w]hen confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height”.
ERT agrees with the dissenting Justices and shares the view of the NAACP and others that this decision is damaging for minority voting rights in the US. ERT also recalls Principle 3 of the Declaration of Principles on Equality which states that:
Positive action, which includes a range of legislative, administrative and policy measures to overcome past disadvantage and to accelerate progress towards equality of particular groups, is a necessary element within the right to equality.
To read ERT’s case summary click here
To read the US Supreme Court's judgment click here
