The Shelby County decision
On June 25, 2013, the United States Supreme Court held that it is unconstitutional to use the
coverage formula in Section 4(b) of the Voting Rights Act to determine which jurisdictions are
subject to the preclearance requirement of Section 5 of the Voting Rights Act, Shelby County v. Holder,
133 S. Ct. 2612 (2013). The Supreme Court did not rule on the constitutionality of Section 5 itself. The effect
of the Shelby County decision is that the jurisdictions identified by the coverage formula in
Section 4(b) no longer need to seek preclearance for the new voting changes, unless they are covered
by a separate court order entered under Section 3(c) of the Voting Rights Act.
Coverage Under the Special Provisions of the Voting Rights Act
Section 5 was enacted to freeze changes in
election practices or procedures in covered jurisdictions until the new procedures have been
determined, either after administrative review by the Attorney General, or after a lawsuit before
the United States District Court for the District of Columbia, to have neither discriminatory
purpose or effect. Section 5 was designed to ensure that voting changes in
covered jurisdictions could not be implemented used until a favorable
determination has been obtained.
The requirement was enacted in 1965 as temporary legislation, to expire in five years, and
applicable only to certain states. The specially covered jurisdictions
were identified in Section 4 by a formula.
The first element in the formula was that the state or political subdivision of the state
maintained on November 1, 1964, a "test or device," restricting the opportunity to
register and vote.
The second element of the formula would be satisfied if the Director of the Census determined
that less than 50 percent of persons of voting age were registered to vote on November 1, 1964,
or that less than 50 percent of persons of voting age voted in the presidential election of November 1964.
Application of this formula resulted in the following states becoming, in their entirety,
"covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South
Carolina, and Virginia, In addition, certain political subdivisions (usually counties) in
four other states (Arizona, Hawaii, Idaho, and North Carolina were covered. It also provided
a procedure to terminate this coverage.
Under Section 5, any change with respect to voting in a covered jurisdiction -- or
any political subunit within it -- cannot legally be enforced unless and until the
jurisdiction first obtains the requisite determination by the
United States District Court for the District of Columbia or makes a submission to the
Attorney General. This requires proof that the proposed voting change does not deny or
abridge the right to vote on account of race, color, or membership in a language minority group.
If the jurisdiction is unable to prove the absence of such discrimination, the District Court
denies the requested judgment, or in the case of administrative submissions, the Attorney
General objects to the change, and it remains legally unenforceable.
In 1970, Congress recognized the continuing need for the special provisions of the Voting
Rights Act, which were due to expire that year, and renewed them for another five years. It
also adopted an additional coverage formula, identical to the original formula except that it
referenced November 1968 as the date to determine if there was a test or device, levels of
voter registration, and electoral participation. This additional formula resulted in the partial
coverage of ten states.
In 1975, the special provisions of the Voting Rights Act were extended for another seven
years, and were broadened to address voting discrimination against members of "language
minority groups." An additional coverage formula was enacted, based on the presence of
tests or devices and levels of voter registration and participation as of November 1972. In
addition, the 1965 definition of "test or device" was expanded to include the
practice of providing election information, including ballots, only in English in states or
political subdivisions where members of a single language minority constituted more than
five percent of the citizens of voting age. This third formula had the effect of covering
Alaska, Arizona, and Texas in their entirety, and parts of California, Florida, Michigan,
New York, North Carolina, and South Dakota.
In 1982, Congress extended Section 5 for 25 years, but no new Section 5 coverage formula
was adopted. Congress did, however, modify the procedure for a jurisdiction to terminate coverage
under the special provisions.
In 2006, Congress extended the requirements of Section 5 for an additional 25 years.
Judicial Review of Voting Changes
Section 5 provides two methods for a covered jurisdiction to comply with Section 5. The
first method mentioned in the statute is by means of a declaratory judgment action
filed by the covered jurisdiction in the United States District Court for the District of Columbia.
A three-judge panel is convened in such cases. The defendant in these cases is the United
States or the Attorney General, represented in court by attorneys from the Voting Section of
the Civil Rights Division. Appeals from decisions of the
three-judge district court go directly to the United States Supreme Court.
The jurisdiction must establish that the proposed voting change "does not have the
purpose and will not have the effect of denying or abridging the right to vote on account of race
or color or [membership in a language minority group]." The status of a voting change that
is the subject of a declaratory judgment review action is that it is unenforceable until the declaratory
judgment action is obtained and the jurisdiction may not implement or use the voting change.
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Administrative Review of Voting Changes
The second method of compliance with Section 5 is known as administrative review. A covered
jurisdiction can avoid the potentially lengthy and expensive litigation route
by submitting the voting change to the Civil Rights Division of the Department of
Justice, to which the Attorney General has delegated the authority to
administer the Section 5 review process. The jurisdiction can implement the change if the
Attorney General affirmatively indicates no objection to the change or if, at the expiration of 60
days, no objection to the submitted change has been interposed by the Attorney General. It is
the practice of the Department of Justice to respond in writing to each submission,
specifically stating the determination made regarding each submitted voting change.
Well over 99 percent of the changes affecting voting are reviewed administratively,
no doubt because of the relative simplicity of the process, the significant cost savings over
litigation, and the presence of specific deadlines governing the Attorney General's issuance of
a determination letter.
Over the last decade, the Attorney General received between 4,500 and 5,500 Section 5
submissions, and reviewed between 14,000 and 20,000 voting changes, per year.
The Attorney General may interpose an objection by informing the
jurisdiction of the decision within 60 days after a completed submission of a voting change is received.
Most voting changes submitted to the Attorney General are determined to have met the Section 5 standard.
Since Section 5 was enacted, the Attorney General has objected to about one percent of the voting changes
that have been submitted.
The Attorney General has published detailed guidelines that
explain Section 5. Additional information about the submission process is available here.
The Attorney General has posted notices of Section 5 submissions.
In conducting administrative review, the Attorney General acts as the surrogate for the
district court, applying the same standards that would be applied by the court.
The burden of establishing that a proposed voting change is nondiscriminatory falls on the
jurisdiction, just as it would on the jurisdiction as plaintiff in a Section 5 declaratory
There are occasions when a jurisdiction may need to complete the Section 5 review process on an
accelerated basis due to anticipated implementation before the end of the 60-day review period.
In such cases, the jurisdiction should formally request "Expedited Consideration"
in its submission letter, explicitly describing the basis for the request in light of conditions
in the jurisdiction and specifying the date by which the determination must be received.
Although the Attorney General will attempt to accommodate all reasonable
requests, the nature of the review required for particular submissions will necessarily vary
and an expedited determination may not be possible in certain cases.
A determination by the Attorney General not to object removes the prohibition on enforcement
imposed by Section 5. This decision not to object to a submitted
change cannot be challenged in court. Morris v. Gressette, 432 U.S. 491 (1977).
Although the jurisdiction may then implement that change, the change remains subject to a
challenge on any other grounds. For example, a redistricting plan may still be
challenged in court by the Attorney General as violating Section 2 of the Voting Rights Act,
or any other applicable provision of federal law which the Attorney General is
authorized to enforce. Similarly, private individuals with standing may challenge that
practice under any applicable provision of state or federal law.
The declaratory judgment route remains available to jurisdictions even after the Attorney
General interposes an objection. The proceeding
before the three-judge D.C. District Court, is de novo and does not constitute an appeal of
the Attorney General's determination.
Lawsuits to Prevent the Use of Voting Changes Not Reviewed under Section 5
Voting changes that have not been reviewed under Section 5 are
legally unenforceable. Section 12(d) of the Act authorizes the Attorney General
to file suit to enjoin violations of Section 5. A private right of action to seek injunctive
relief against a Section 5 violation was recognized by the Supreme Court in Allen
v. State Board of Elections, 393 U.S. 544, 554-57 (1969). Any person or organization
with standing to sue can challenge a Section 5 violation in the United States District Court
in the judicial district where the violation is alleged to have occurred. Whether brought by
the Attorney General or by private parties, these cases are commonly known as Section 5
Section 5 enforcement cases are heard by three-judge district court panels, whose role is
to consider three things only:
- whether a covered voting change has occurred;
- if so, whether the requirements of Section 5 have been met preclearance has been obtained; and
- if not, what relief by the court is appropriate.
Lopez v. Monterey County, 519 U.S. 9, 23 (1996). The only court that can
make the determination that change is not discriminatory is purpose or effect is the United
States District Court for the District of Columbia.
Upon finding non-compliance with Section 5, the local federal court will consider an
appropriate equitable remedy. The general objective of such remedies
is to restore the situation that existed before the implementation of the change. Thus, the typical
remedy includes issuance of an injunction against further use of the change. In certain
circumstances, other remedies have included voiding illegally-conducted elections, enjoining
upcoming elections unless and until the jurisdiction complies with Section 5, or ordering a
special election; in some cases courts have also issued orders directing
the jurisdiction to seek Section 5 review of the change from the Attorney General or the
United States District Court for the District of Columbia.