Shelby County v. Holder
Argued: February 27, 2013
Decided: June 25, 2013
Background
Voting is of fundamental importance to everyone in our democracy. Beginning as early as
elementary school, many students vote in student council elections. Since the ratification of the 26th
Amendment in 1971, 18 year olds have been eligible to vote in all federal, state and local elections.
Some places are even experimenting with allowing students younger than 18 to vote in local
elections. However, when the nation was young, only white males who were property owners could
vote in many places. Over time, the right to vote has been extended to many more people—
including people of all races, women, and adults as young as age 18. But the road to full equality in
voting rights has been bumpy and contested.
After the Civil War, three constitutional amendments were ratified that extended important
freedoms. The Thirteenth Amendment, ratified in 1865, abolished slavery. The Fourteenth
Amendment, ratified in 1868, guaranteed citizenship to all persons born or naturalized in the United
States and guaranteed due process and equal protection of the laws to all. The Fifteenth
Amendment, ratified in 1870, prohibited the federal or state governments from denying the right to
vote based on “race, color or previous condition of servitude.” (The Nineteenth Amendment, which
extended the right to vote to women, was still 50 years away!) Each of these Amendments has an
additional clause that gives Congress the power to enforce it through appropriate legislation.
The Fifteenth Amendment was intended to end voting discrimination, but it did not. For decades
after the Amendment was ratified, states found ways to limit access to voting for black Americans.
Some states and localities required voters to take literacy tests, pay extra taxes, or prove that they
owned property. These qualifications were specifically designed to keep black Americans from being
able to register and vote. Courts call these voter suppression tactics “first generation barriers”
because they were the first methods used to illegally deprive people of their voting rights. People
who were denied the right to vote because of these requirements could sue the state or local
government in court. That process was slow and expensive though, and even a successful challenge
did not change the results of past elections. Often, the state or local governments would come up
with new discriminatory voting requirements as soon as a court ruled previous ones illegal.
In 1965, Congress passed the Voting Rights Act to address these problems. This law brought about
a national change in voting rights for minorities. Many view it as one of the most effective civil
rights laws in American history. Others view this law as an unconstitutional misuse of the federal
government’s power to regulate elections. This is a case about whether this law is still necessary and,
if so, whether Congress appropriately used its power in making that decision.
© Street Law, Inc. 2013
1
Facts
The Voting Rights Act (VRA) aims to prevent discrimination in voting laws and practices in several
important ways. Section 2 of the law applies nation-wide, and allows individuals to sue their state
and local governments for voting laws that discriminate.
Section 5 of the Act only applies to certain state and local governments. Under this section,
governments that have historically used discriminatory first-generation voting barriers are required
to ask the federal government for permission—or preclearance—before they can modify their
voting laws. The preclearance process requires these state and local governments to prove that the
proposed change does not harm or intend to harm an individual’s right to vote because of his race.
While first generation voting barriers like poll taxes and literacy tests typically no longer exist, newer,
more subtle tactics are sometimes used to discriminate. For example, changes may be made to a
poll’s location or hours to make access harder for some people. These practices are called “second
generation” barriers.
State and local governments can “bail-out” of this preclearance process if they can show they have
run elections for 10 years without discriminating. Additionally, a state or local government can be
required to “bail-in” if it was not originally covered, but now discriminates. By allowing states to be
bailed-in and bailed-out, Section 5 is designed to target only those states that need to be monitored.
State and local governments that are not covered by the preclearance requirement of Section 5 do
not have to ask permission before making changes in their voting laws. In 2006, nine states were
fully covered, and there were covered districts or counties in seven additional states. (As of 2013,
nine states were fully covered, and there were covered districts or counties in six additional states.)
The Voting Rights Act was renewed in 1970 for five more years. It was renewed for another seven
years in 1975, and for an additional 25 years in 1982. In 2006, the legislature considered whether to
renew the law again. Congress reviewed over 15,000 pages of facts related to voting practices. By a
vote of 390-33 in the House of Representatives and a unanimous vote in the Senate, the VRA was
extended for another 25 years.
Shelby County, Alabama, has been a Section 5 “covered” district since 1965. This means that the
county must seek preclearance for any change it wants to make in its voting laws. Shelby County
sued the federal government because it believes that Section 5 of the VRA is unconstitutional. The
federal District Court in Washington, D.C., said that Section 5 of the law was not unconstitutional.
Shelby County appealed, but the U.S. Court of Appeals agreed with the lower court’s decision. The
Supreme Court has agreed to hear the case.
Issue
Did Congress exceed its power to regulate voting when it reauthorized Section 5 of the Voting
Rights Act in 2006?
© Street Law, Inc. 2013
2
Laws, Constitutional Provisions, and Precedent
US Constitution: Article I, Section 4
“The times, places and manner of holding elections for Senators and Representatives, shall be
prescribed in each state by the legislature thereof…”
Tenth Amendment
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.”
Fifteenth Amendment
“The 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. The Congress
shall have power to enforce this article by appropriate legislation.”
Summary of Section 5 of the VRA:
Covered states and districts must ask for approval from the United States Attorney General or the
United States District Court for the District of Columbia before making changes to any votingrelated qualifications, prerequisites, standards, practices, or procedures.
The Attorney General or the District Court must declare that the change has neither the purpose
nor the effect of denying or diminishing any citizen’s right to vote on account of race or color, and
that the change will not violate any other guarantee set out in this provision.
South Carolina v. Katzenbach (1966)
This case was the first challenge to the Voting Rights Act. The State of South Carolina was covered
under Section 5, and its officials argued that the VRA was an unconstitutional use of Congress’
power. The Court decided that Section 5 was an “appropriate” way for Congress to use its
constitutional power because it was a “legitimate response” to the discrimination that was taking
place at the time.
City of Boerne v. Flores (1997)
The City of Boerne challenged a federal law, the Religious Freedom Restoration Act of 1993
(RFRA). The Supreme Court decided that the RFRA was unconstitutional, because Congress
exceeded its Fourteenth Amendment enforcement powers. While this case does not deal with voting
rights, it sets a standard for how the Supreme Court sometimes analyzes Congress’ legislative power.
The Court said that Congress must use its power to make laws in a way that is “proportionate” and
“congruent” to the injury it is trying to remedy or prevent. This means that strong measures may be
appropriate in order to address one kind of harm, but inappropriate for another, lesser harm.
NAMUDNO v. Holder (2009)
North Austin’s Municipal Utility District Number One (NAMUDNO) was covered under Section 5
of the Voting Rights Act because it is in the fully covered state of Texas. NAMUDNO sued the
federal government, saying that its local government should not be covered because the formula that
places districts under Section 5 is outdated, and therefore unconstitutional. The Supreme Court said
© Street Law, Inc. 2013
3
that a decision about Section 5 was unnecessary at that time because NAMUDNO was eligible for
“bail-out.” However, the Court also said that it had serious questions about whether the Section 5
formula would still pass the “congruent” and “proportional” test today. The justices said that
because the formula does not treat the states equally, there may be a problem with the Section 5
approach if it is not based upon current problems.
Arguments for Shelby County (The VRA exceeds Congress’ authority)

The 2006 renewal of the Voting Rights Act was an over-reach of Congressional power. While
Congress has the power to enforce the right to vote under the Fifteenth Amendment, this power
is not unlimited. Other aspects of election law are given to the states in Article 1, Section 4 of
the Constitution. Therefore, the laws Congress enacts must be “congruent and proportional” to
voting rights problems.

Section 5 of the Voting Rights Act is no longer “congruent and proportional” to the problem.
The law is written to target the use of first-generation barriers to voting. Congress only renewed
the law because it found some evidence of second-generation barriers in the covered states.
Singling these governments out with a law that is not properly lined up with the problem as it
exists today treats them unequally. If Congress wants to prevent new forms of discrimination, it
needs to write a new law that is specifically designed to identify the places where those practices
happen today.

Additionally, requiring only these states and districts to get preclearance for every single voting
practice creates too strong a burden in light of the need that exists today. Now, there are more
minorities who register to vote and actually vote in some covered states than in some uncovered
states. Section 5 strongly regulates some governments that do not need regulation, and ignores
others that do. This unequal treatment of the states is unfair and unconstitutional. Preclearance
should either apply to all states or no states.

The bailout option is not flexible enough to make the law “congruent and proportional” because
the requirements are too strict. Section 5 bailout requires covered districts to prove that they
were perfect for 10 years in order to gain back control of local elections. Even when a district
does successfully bail out, they can be put back under Section 5 protection if a successful
discrimination claim is made within 10 years. This standard is almost impossible to meet.
Arguments for Attorney General Holder (The VRA does NOT exceed Congress’ authority)

The Fifteenth Amendment gives Congress the authority to make laws that regulate voting. The
Court has upheld the constitutionality of this Act many times. In 2006, Congress considered
over 15,000 pages of facts to make a nearly unanimous decision to reauthorize the VRA. The
Supreme Court should defer to the will of the people as represented by Congress.
© Street Law, Inc. 2013
4

The law was created in response to first-generation barriers because those were the ways that
states discriminated at that time. The VRA has been successful in reducing the use of firstgeneration barriers in some of these districts, but evidence shows that these same local areas
continue to discriminate in different ways. The covered districts make up a small part of the
country, yet they produce more voting discrimination lawsuits than the rest of the nation
combined.

Requiring preclearance for voting law changes is an appropriate burden to place on these local
governments because the need to monitor them continues to exist. Section 5 has an important
preventive effect, keeping covered districts from suggesting some changes they know to be
discriminatory. Even more importantly, these districts continue to suggest changes that the
federal government rejects because they are discriminatory. There is ample evidence that
discrimination in voting persists in Shelby County. There is good reason for the preclearance
requirement to apply to them.

Section 5 of the VRA applies fairly to all states because it has both the “bail-in” and “bail-out”
provisions. Also, Section 2 allows for law suits alleging voting discrimination to be filed by
citizens from all states, not just covered states and districts. Therefore, the Voting Rights Act is
congruent and proportional to the problem, because it can be modified regularly to only include
those states that need to be monitored.
Decision
The Supreme Court ruled, in a 5-4 decision, that the formula used to place districts under Section 5
preclearance is now an unconstitutional extension of federal power into states’ rights. Chief Justice
Roberts wrote the majority opinion, which Justices Scalia, Kennedy, Thomas, and Alito joined.
Justice Thomas also wrote a concurring opinion. Justice Ginsburg authored the dissent, which was
joined by Justices Breyer, Sotomayor, and Kagan.
Majority
The majority said that the formula used to decide which jurisdictions were covered was no longer
closely related to the problem it targeted, and therefore unjustified. In the majority opinion, the
justices explained that the federal government can only control state voting laws when the current
burden is justified by current needs. They recognized that voting discrimination does still continue
today—there is a current need. However, they pointed out, the VRA was applied to districts based
upon whether they used discriminatory practices over 40 years ago, and not based on the types of
practices they use currently. This is unconstitutional because it is a current burden for those districts
(requiring preclearance) that is based upon a past need. The majority said that Section 5 by itself
could be constitutional, but only if Congress were to write a new formula based on current
conditions—the law must be written to target the districts that are discriminating against voters
today.
© Street Law, Inc. 2013
5
Concurrence
Justice Thomas agreed that the formula for preclearance is unconstitutional, but he also said that
Section 5 preclearance itself is unconstitutional. While the VRA was created to address problems
that were exceptional and unique in their discriminatory ability, those problems no longer exist.
Therefore, he concluded, there is no longer any need for this strong burden on states’ rights.
Dissent
The dissenting justices said that the power to make the decision about which districts require
preclearance belongs with Congress, and not the Court. Because voting is such a fundamental right,
they explained, “Congress’ power to act is at its height.” This means that the Court should not ask
whether Congress has selected the best way, but whether Congress has rationally selected an
appropriate way to achieve the goal of ending voting discrimination. There is a large amount of
evidence showing that racial discrimination continues—even if in a different form—in the covered
districts. As Congress gave this evidence careful consideration when it reauthorized the Act in 2006,
the dissenters concluded that the law is a rational way to achieve a legitimate and necessary goal.
© Street Law, Inc. 2013
6