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Shelby County v. Holder

Shelby County, Alabama v. Holder involved a challenge to Section 5 of the Voting Rights Act, which requires jurisdictions that have a history of engaging in racial discrimination in voting to obtain federal permission – “pre-clearance” – before altering their voting laws and regulations.  Shelby County, Alabama argued that Section 5 was an outdated and unnecessary infringement on state sovereignty.  Both the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit upheld the pre-clearance requirement as an appropriate exercise of Congress’ express constitutional powers to protect the constitutional right to vote free from racial discrimination. (See here and here for our briefs filed in the lower courts, urging that result.)  The Supreme Court granted Shelby County’s petition for a writ of certiorari

On February 1, 2013, we filed an amici curiae brief on behalf of leading scholars on the Constitution and the Reconstruction Amendments, including Professors Jack M. Balkin, Guy-Uriel Charles, Luis Fuentes-Rohwer and Adam Winkler, urging the Supreme Court to uphold the constitutionality of the pre-clearance requirement of the Voting Rights Act.  Discussing the text and history of the Thirteenth, Fourteenth and Fifteenth Amendments, our brief demonstrated that the Reconstruction Framers gave Congress broad power to protect individual rights, including the right to vote free from racial discrimination and infringement by the states.  The text and history of the Fifteenth Amendment, our brief showed, give Congress the power to enact prophylactic legislation, such as the Voting Rights Act, to ensure that the right to vote is actually enjoyed by all persons regardless of race. 

On June 25, 2013, in a sharply divided 5-4 decision, the Supreme Court invalidated the coverage formula contained in Section 4 of the Voting Rights Act, which identified the jurisdictions subject to federal pre-clearance. The majority opinion, authored by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Alito and Thomas, held that the coverage formula was unconstitutional because it relied on out-of-date evidence.  In a powerful dissent, Justice Ginsburg (joined by Justices Breyer, Sotomayor and Kagan) argued that the majority’s ruling could not be squared with the Fifteenth Amendment.  As we argued in our brief, Justice Ginsburg demonstrated that the text and history of the Fifteenth Amendment supported Congress’ authority to enact legislation that specifically targeted potential state abuses, explaining that the Fifteenth Amendment was one of three Reconstruction Amendments designed to “arm Congress with the power and authority to protect [its citizens] from violations of their rights by the States.”

Read CAC’s post-argument commentary here, and read our reaction to the Supreme Court’s Shelby County decision here, here and here.