It’s been a big day here at PLF. On top of our momentous win in our direct representation Supreme Court property rights case, Koontz v. St. Johns River Water Management District, we also had a long-anticipated victory in the Voting Rights Act case, Shelby County v. Holder, where we participated as amicus. Shelby was a 5-4 decision where the majority found that Section 4 of the Voting Rights Act was unconstitutional. Chief Justice Roberts wrote the opinion and Thomas concurred. Breyer, Sotomayor, and Kagan joined in Ginburg’s dissent.
Justice Roberts’s opinion states that Section 5 challenged federalism by requiring states to obtain federal permission before enacting any law related to voting. While this was necessary to combat intentional discrimination at the voting booth in the 1960s — such as literacy tests — the pervasive and widespread atrocities of the Jim Crow era are simply not present at the polls today. Section 4′s “coverage formula” used information from the 60s and 70s to apply Section 5′s strings only to some states and local jurisdictions – that information is now long out of date.
The Chief Justice boils the question down to whether the “Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.” In other words, the Act’s burdens must be justified by current needs. In 1965 States could be divided into two groups: “those with a recent history of voting tests and low voter registration and turnout” and “those without those characteristics.” Today the Court recognized that the country, and its current needs, have changed.
Roberts writes that the Voting Rights Act’s requirements depart from important principles of federalism and the Tenth Amendment. Federalism is an important means to citizens’ liberty that allows states to retain “broad autonomy in structuring their governments and pursuing legislative objectives.” Thus, Section 4′s burdensome restrictions cannot be imposed on jurisdictions without reason. Roberts rightly states that the Fifteenth Amendment commands that the right to vote “shall not be denied or abridged on account of race or color” and allows Congress to enforce that command; but he goes on to say that the Fifteenth Amendment is “not designed to punish for the past; its purpose is to ensure a better future.” Roberts ended asserting that when Congress failed to update its coverage formula the Court had “no choice” but to declare it unconstitutional. So the next time Congress tries to draft a coverage formula it “must ensure that the legislation it passes to remedy that problem speaks to current conditions.” Thomas goes further in his concurrence, asserting that he would find Section 5 unconstitutional as well.
Though PLFs brief focused on Section 5, our arguments are largely the same ones the Court used to invalidate Section 4. Our brief called attention to some of Section 5′s most serious problems, like how its “Effects Test” violates Equal Protection. We also focused on Section 5, encourages constitutionally suspect racial gerrymandering and is rarely used to eliminate intentional discrimination instead of enforcing rights guaranteed by the Fifteenth Amendment.