On the second-to-last day of the 2013 summer term, a 5-4 majority of the U.S. Supreme Court struck down a key enforcement provision of the Voting Rights Act (the “Act”) in Shelby County v. Holder, 570 U.S. ___ (2013). Congress enacted the landmark civil rights law in 1965 to remedy discriminatory voting practices that disenfranchised African-Americans throughout the American south. The centerpiece of the Act required certain state and local governments to obtain Department of Justice “preclearance” before making changes to state and local election laws. In operation, section 5 of the Act formally addressed the parameters of “preclearance,” while section 4 created the formula to determine which states must obtain clearance. Pursuant to the formula, section 4 required nine states – all with a history of voting discrimination – to satisfy the preclearance requirements. Congress reauthorized the Act in 2006, including the preclearance requirement and formula of section 4.

Shelby County, Alabama, challenged the preclearance requirements of sections 4 and 5 as outmoded and biased against particular governments. Chief Justice John Roberts wrote for the majority – which included Justices Alito, Scalia, Thomas, and Kennedy – in holding that section 4 was unconstitutional. The Court did not address the constitutionality of pre-clearance itself, but, in practical effect, without section 4 to establish which governments are subject to the requirement, section 5 will have no enforcement power unless or until Congress enacts a new statute to clarify the formula. Chief Justice Roberts repeatedly invoked the 10th Amendment in his opinion, noting that the Act “sharply departs” from the principles governing states’ rights. The Chief Justice also made it clear that while the Act was needed to remedy injustice in 1965, in his opinion, “nearly fifty years later, things have changed dramatically.”

In dissent, Justice Ruth Bader Ginsburg, joined by Justices Breyer, Kagan, and Sotomayor, argued that the Court was usurping the power of Congress, which reauthorized the Act in 2006. Justice Ginsburg argued that in voting rights cases, the Court should be especially deferential to Congress, which was given broad powers to protect such rights by the constitution and its post-Civil War amendments. Justice Ginsburg noted that “Congress approached the 2006 reauthorization of the Act with great care and seriousness… The same cannot be said of the court’s opinion today.”

Congress has changed since 2006. Chief Justice Roberts’ opinion noted that Congress can change section 4 to reflect “current conditions” if it wants to continue enforcement. However, this likely will not happen, at least in the immediate future. Gridlocked efforts on gun control, the Farm Bill, and the uncertain future of immigration reform in the House of Representatives indicate a lack of consensus, at least on hot button issues. And with the Senate and the House each controlled by the opposite party, consensus on any legislative changes to the Voting Rights Act would be needed to get a bill to the President’s desk. The Senate Judiciary Committee has scheduled hearings in July to examine the criteria used in section 4. They should provide some indication as to the likelihood of consensus. But if recent history is any indication, the next steps in this area will be taken on the state level.

The Supreme Court’s analysis highlights the increasing tensions between federal and state powers, and the meaning of the 10th Amendment.

Research and drafting assistance for this post was provided by Reed Smith Summer Associate Zeke Rediker.