Supreme Court Preview: Constitutionality of the Preclearance and Coverage Provisions of the Voting Rights Act Reauthorization of 2006

On Wednesday, February 27, 2013, the Court will hear argument in one of the most significant cases of the current term, Shelby County v. Holder (No. 12-96), a constitutional challenge to key provisions of Congress’s 2006 reauthorization of the Voting Rights Act of 1965. In this case, Shelby County challenges the provisions requiring certain “covered jurisdictions,” primarily the southern states of the old Confederacy, to secure advance approval (“preclearance”) from the Department of Justice or a federal court in Washington, D.C. before implementing any changes in voting or election procedures. 

These provisions were enacted after a century of fierce resistance in those southern states, through violence, intimidation, and obstructive and evasive procedures, rendered illusory the Fifteenth Amendment’s guarantee that the right to vote cannot be “denied or abridged…on the basis of race, color or previous condition of servitude.”  The preclearance provisions are viewed as the heart of the Voting Rights Act and are credited with the enormous gains in the enfranchisement of black and other minority citizens.

This case addresses constitutional questions raised, but not answered, in the Supreme Court’s 2009 decision in Northwest Austin Municipal Utility District No. 1 vs. Holder.[1] Petitioner Shelby County Alabama maintains that the circumstances that once justified the original preclearance and coverage provisions and subsequent reauthorizations no longer exist to support the 2006 reauthorization. It argues that current evidence of racially discriminatory voting practices in the covered jurisdictions is inadequate to support this invasion of state sovereignty and to justify the disparate treatment between the covered states and other states.

Respondents maintain that while the preclearance provisions have been successful in greatly expanding black and minority enfranchisement, Congress had sufficient evidence of continuing racially discriminatory voting practices concentrated in the covered jurisdictions to justify the 2006 extension of those provisions. Respondents  and numerous amici[2] warn that invalidation of those provisions jeopardizes the voting rights gains  achieved over the last half century.


In 1868, to provide stronger and sounder authority for its efforts to protect the voting rights of black citizens, Congress passed the Fifteenth Amendment, providing that the right 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.”[3] To give meaning to that provision the Amendment delegated to Congress the authority to enforce it through “appropriate legislation.” The Amendment was ratified in 1870 and immediately thereafter Congress enacted sweeping enforcement legislation. 

Limiting constructions of that legislation by the Supreme Court, the ending of Reconstruction, and the rise of Jim Crow swept away most of this legislation and reversed earlier gains in black enfranchisement. The states of the old Confederacy implemented a series of devices to effectively disenfranchise their black citizens. The Supreme Court struck down some of those practices, but judicial remedies proved largely ineffectual against new and evasive practices of those states and the violence and intimidation that prevented black citizens from exercising the right to vote. 

The dramatic violent resistance in those states to renewed efforts to enfranchise black citizens in the early 1960s, including the murders of civil rights workers and the violent suppression of a voting-rights march in Selma, Alabama, finally led to the enactment of the Voting Rights Act of 1965.[4]

Among other things, Section 2 of the Act created a nationwide cause of action to enjoin voting practices or procedures that had the purpose or effect of denying or abridging the right to vote on account of race. Recognizing the limits of case-by-case, after-the-fact litigation, however, the Act also included prophylactic measures limited to those geographic areas with a history of such practices. Specifically, certain temporary provisions of the Act applied only to States and political subdivisions deemed “covered” under Section 4(b) of the Act. Under Section 4(b), a jurisdiction was covered if it “maintained on November 1, 1964, any test or device” prohibited under 4(b) and had less than 50 percent voter registration or participation as of the 1964 presidential election. These criteria were deliberately designed to capture the states of the old Confederacy with the worst history of racially discriminatory voting practices.