Shelby Cnty. v. Holder

570 U.S. 529

133 S.Ct. 2612

186 L.Ed.2d 651

SHELBY COUNTY, ALABAMA, Petitioner

v.Eric H. HOLDER, Jr., Attorney General, et al.

No. 12–96.

Supreme Court of the United States

Argued Feb. 27, 2013.

Decided June 25, 2013.

Bert W. Rein, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, for Federal Respondent.

Debo P. Adegbile, for Respondents Bobby Pierson, et al.

Frank C. Ellis, Jr., Wallace, Ellis, Fowler, Head & Justice, Columbiana, AL, Bert W. Rein, William S. Consovoy, Thomas R. McCarthy, Brendan J. Morrissey, Wiley Rein LLP, Washington, DC, for Petitioner.

Kim Keenan, Victor L. Goode, Baltimore, MD, Arthur B. Spitzer, Washington, D.C., David I. Schoen, Montgomery, AL, M. Laughlin McDonald, Nancy G. Abudu, Atlanta, GA, Steven R. Shapiro, New York, NY, for Respondent–Intervenors Bobby Pierson, Willie Goldsmith, Sr., Mary Paxton–Lee, Kenneth Dukes, and Alabama State Conference of the National Association for the Advancement of Colored People.

Sherrilyn Ifill, Director–Counsel, Debo P. Adegbile, Elise C. Boddie, Ryan P. Haygood, Dale E. Ho, Natasha M. Korgaonkar, Leah C. Aden, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Joshua Civin, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, Of Counsel: Samuel Spital, William J. Honan, Harold Barry Vasios, Marisa Marinelli, Robert J. Burns, Holland & Knight LLP, New York, NY, for Respondent–Intervenors Earl Cunningham, Harry Jones, Albert Jones, Ernest Montgomery, Anthony Vines, and William Walker.

Donald B. Verrilli, Jr., Solicitor General, Thomas E. Perez, Assistant Attorney General, Sri Srinivasan, Deputy Solicitor General, Sarah E. Harrington, Assistant to the Solicitor General, Diana K. Flynn, Erin H. Flynn, Attorneys, Department of Justice, Washington, D.C., for Federal Respondent.

Jon M. Greenbaum, Robert A. Kengle, Mark A. Posner, Maura Eileen O'Connor, Washington, D.C., John M. Nonna, Patton Boggs LLP, New York, NY, for Respondent–Intervenor Bobby Lee Harris.

Chief Justice ROBERTS delivered the opinion of the Court.

The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And § 4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, "an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution." South Carolina v. Katzenbach, 383 U.S. 301, 309, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). As we explained in upholding the law, "exceptional conditions can justify legislative measures not otherwise appropriate." Id., at 334, 86 S.Ct. 803. Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years. See Voting Rights Act of 1965, § 4(a), 79 Stat. 438.

Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, "the racial gap in voter registration and turnout [was] lower in the States originally covered by § 5 than it [was] nationwide." Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193, 203–204, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009). Since that time, Census Bureau data indicate that African–American voter turnout has come to exceed white voter turnout in five of the six States originally covered by § 5, with a gap in the sixth State of less than one half of one percent. See Dept. of Commerce, Census Bureau, Reported Voting and Registration, by Sex, Race and Hispanic Origin, for States (Nov. 2012) (Table 4b).

At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act's extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, "the Act imposes current burdens and must be justified by current needs." Northwest Austin, 557 U.S., at 203, 129 S.Ct. 2504.

I

A

The Fifteenth Amendment was ratified in 1870, in the wake of the Civil War. It provides that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude," and it gives Congress the "power to enforce this article by appropriate legislation."

"The first century of congressional enforcement of the Amendment, however, can only be regarded as a failure." Id., at 197, 129 S.Ct. 2504. In the 1890s, Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia began to enact literacy tests for voter registration and to employ other methods designed to prevent African–Americans from voting. Katzenbach, 383 U.S., at 310, 86 S.Ct. 803. Congress passed statutes outlawing some of these practices and facilitating litigation against them, but litigation remained slow and expensive, and the States came up with new ways to discriminate as soon as existing ones were struck down. Voter registration of African–Americans barely improved. Id., at 313–314, 86 S.Ct. 803.

Inspired to action by the civil rights movement, Congress responded in 1965 with the Voting Rights Act. Section 2 was enacted to forbid, in all 50 States, any "standard, practice, or procedure ... imposed or applied ... to deny or abridge the right of any citizen of the United States to vote on account of race or color." 79 Stat. 437. The current version forbids any " standard, practice, or procedure" that "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973(a). Both the Federal Government and individuals have sued to enforce § 2, see, e.g., Johnson v. De Grandy, 512 U.S. 997, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994), and injunctive relief is available in appropriate cases to block voting laws from going into effect, see 42 U.S.C. § 1973j(d). Section 2 is permanent, applies nationwide, and is not at issue in this case.

Other sections targeted only some parts of the country. At the time of the Act's passage, these "covered" jurisdictions were those States or political subdivisions that had maintained a test or device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election. § 4(b), 79 Stat. 438. Such tests or devices included literacy and knowledge tests, good moral character requirements, the need for vouchers from registered voters, and the like. § 4(c), id ., at 438–439. A covered jurisdiction could "bail out" of coverage if it had not used a test or device in the preceding five years "for the purpose or with the effect of denying or abridging the right to vote on account of race or color." § 4(a), id., at 438. In 1965, the covered States included Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. The additional covered subdivisions included 39 counties in North Carolina and one in Arizona. See 28 C.F.R. pt. 51, App. (2012).

In those jurisdictions, § 4 of the Act banned all such tests or devices. § 4(a), 79 Stat. 438. Section 5 provided that no change in voting procedures could take effect until it was approved by federal authorities in Washington, D.C.—either the Attorney General or a court of three judges. Id., at 439. A jurisdiction could obtain such "preclearance" only by proving that the change had neither "the purpose [nor] the effect of denying or abridging the right to vote on account of race or color." Ibid .

Sections 4 and 5 were intended to be temporary; they were set to expire after five years. See § 4(a), id., at 438; Northwest Austin, supra, at 199, 129 S.Ct. 2504. In South Carolina v. Katzenbach, we upheld the 1965 Act against constitutional challenge, explaining that it was justified to address "voting discrimination where it persists on a pervasive scale." 383 U.S., at 308, 86 S.Ct. 803.

In 1970, Congress reauthorized the Act for another five years, and extended the coverage formula in § 4(b) to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1968. Voting Rights Act Amendments of 1970, §§ 3–4, 84 Stat. 315. That swept in several counties in California, New Hampshire, and New York. See 28 C.F.R. pt. 51, App. Congress also extended the ban in § 4(a) on tests and devices nationwide. § 6, 84 Stat. 315.

In 1975, Congress reauthorized the Act for seven more years, and extended its coverage to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1972. Voting Rights Act Amendments of 1975, §§ 101, 202, 89 Stat. 400, 401. Congress also amended the definition of "test or device" to include the practice of providing English-only voting materials in places where over five percent of voting-age citizens spoke a single language other than English. § 203, id., at 401–402. As a result of these amendments, the States of Alaska, Arizona, and Texas, as well as several counties in California, Florida, Michigan, New York, North Carolina, and South Dakota, became covered jurisdictions. See 28 C.F.R. pt. 51, App. Congress correspondingly amended sections 2 and 5 to forbid voting discrimination on the basis of membership in a language minority group, in addition to discrimination on the basis of race or color. §§ 203, 206, 89 Stat. 401, 402. Finally, Congress made the nationwide ban on tests and devices permanent. § 102, id ., at 400.

In 1982, Congress reauthorized the Act for 25 years, but did not alter its...