SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL.
On June 25, 2013, the Supreme Court ruled Section 4 of the Voting Rights Act of 1965 unconstitutional in the landmark case Shelby County, Alabama v Holder, Attorney General et al. The act in question set forth 1) the federal right to preclearance of states’ voting practices in order to prevent race-based discrimination and 2) the standards used to determine which states and districts such power applied to. Section 5 set forth the former, Section 4 the latter. Eliminating Section 4—and therefore its coverage provisions—makes Section 5 preclearance provisions mute; without grounds for who preclearance applies to, the power itself is meaningless.
However, the Supreme Court’s ruling did not strip the Voting Rights Act of all federal preclearance power. Section 2 remained, stating that “no qualifications or prerequisite to voting… shall be imposed or applied by any state or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
Two major factors change as Section 2, not Section 5, becomes the source to challenge race-based discrimination in elections. The first is a shift in the burden of proof. Under Section 5 preclearance provisions, those who seek to change election laws must show that neither the intent nor effect of the change discriminates against minority voters. Under Section 2, minorities will have to show that the impact of the law discriminates against minorities. The second factor is a change in the status quo. Under Section 5 rules, the existing law remains in effect until the DOJ approves the proposed changes. Under Section 2, the new law goes becomes law and opponents must seek to overturn it by showing discretionary effect. Both factors point in the same direction: the ruling makes it harder for minorities defend their voting rights through the courts.