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In an interesting decision — typical of the Court’s recent split-the-baby approach — the Supreme Court left the Voting Rights Act intact, but forced Congress to update it.
Section 5 of the VRA requires that certain “covered jurisdictions” have to get federal pre-clearance before making any changes to their voting laws (down to things like the locations of polling places). Section 4 of the Act contains a “coverage formula” that determines which jurisdictions are covered — basically 9 states and a handful of counties are covered and have been since the 1960s (with a slight tweak in the early 70s).
In today’s decision in Shelby County v. Holder, the Court did not strike down Section 5, but did strike down Section 4. So Congress can still force states or counties to pre-clear election law changes, but Congress first has to rewrite the coverage formula to reflect 2013, rather than 1965.
The Court’s reasoning is based on the VRA’s invasion of state sovereignty. In the words of Justice Alito:
The Voting Rights Act sharply departs from these basic principles [of state sovereignty]. . . . States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, ….
While the 15th Amendment arguably authorizes Congress to infringe on state sovereignty to enforce voting rights, it is an extraordinary measure that must be justified by the facts. The burden is now on Congress to show through empirical data that voting rights are actually being suppressed, and where —
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 such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.”
It is encouraging to see the Court actually engaging with the constitutionality of congressional action rather than abdicating, a la Obamacare.