Does Section 4(b) of the Voting Rights Act of 1965, which defines the jurisdictions subject to Section 5 preclearance using coverage criteria based on voting tests and voter registration and turnout data from the 1960s and early 1970s, exceed Congress's enforcement authority under the Fifteenth Amendment and violate the principle of equal sovereignty among the States?

The Voting Rights Act of 1965 was enacted to combat entrenched racial discrimination in voting. Section 5 required covered jurisdictions to obtain federal preclearance before implementing any change to voting laws, and Section 4(b) defined covered jurisdictions as those that maintained tests or devices as prerequisites to voting and had low voter registration or turnout in the 1960s and early 1970s. The coverage provisions were originally set to expire after five years but were reauthorized in 1970, 1975, 1982, and 2006, the last time for 25 years, without changing the coverage formula. By the time of the 2006 reauthorization, the tests and devices had been banned nationwide for over 40 years, and voter registration and turnout rates among minorities in covered jurisdictions approached or exceeded parity with white voters. Minority candidates held office at unprecedented levels. Congress also expanded Section 5 in 2006 to prohibit changes with any discriminatory purpose and changes that diminish minority voters' ability to elect their preferred candidates. Shelby County, Alabama, a covered jurisdiction, did not seek bailout and instead challenged the constitutionality of Sections 4(b) and 5. The Attorney General had recently objected to voting changes proposed from within the county.

In 2010, Shelby County sued the Attorney General in the United States District Court for the District of Columbia, seeking a declaratory judgment that Sections 4(b) and 5 of the Voting Rights Act are facially unconstitutional and a permanent injunction against their enforcement. The District Court ruled against the county and upheld the Act, finding the evidence before Congress in 2006 sufficient to justify reauthorizing Section 5 and continuing the Section 4(b) coverage formula. The Court of Appeals for the D.C. Circuit affirmed, with Judge Williams dissenting and finding the coverage formula irrational. The Supreme Court granted certiorari.

(Roberts, J.)

Yes. Section 4(b)'s coverage formula is unconstitutional, and it can no longer be used as a basis for subjecting jurisdictions to preclearance under Section 5.

The Voting Rights Act departs sharply from two basic principles: States retain broad autonomy in structuring their governments and regulating elections under the Tenth Amendment, and there is a fundamental principle of equal sovereignty among the States. Preclearance requires covered States to seek federal permission before enacting laws they could otherwise implement on their own, and it applies to only some States. In South Carolina v. Katzenbach, 383 U.S. 301 (1966), this extraordinary departure was upheld because exceptional conditions of pervasive, flagrant voting discrimination justified it, and the coverage formula was rational in both practice and theory because it targeted jurisdictions using tests and devices and exhibiting low registration and turnout. As Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193 (2009), made clear, the Act imposes current burdens and must be justified by current needs, and any disparate geographic coverage must be sufficiently related to the problem it targets.

Conditions have changed dramatically. Tests and devices have been banned nationwide for over 40 years, racial disparities in registration and turnout have been erased or reversed in covered jurisdictions, and minority officeholding has soared. Yet the Act's burdens were not eased; they were increased in 2006, while the coverage formula remained rooted in decades-old data and eradicated practices.

The Government's defenses fail. Its argument that the formula was reverse-engineered to capture desired jurisdictions does not demonstrate any relevance of the formula to the problem it targets. Its argument that the formula remains permissible because it was relevant in 1965 ignores that history did not end in 1965, and Congress, if it divides the States, must identify covered jurisdictions on a basis that makes sense in light of current conditions. The voluminous legislative record does not show discrimination approaching that of 1965, and Congress did not use that record to craft a formula grounded in current conditions. Second-generation barriers like vote dilution only highlight the irrationality of a formula based on voting tests and ballot access. The Court issues no holding on Section 5 itself, and Section 2 remains in force. Congress may draft a new coverage formula based on current conditions.

Concurrence (Thomas, J.) Section 5 is itself unconstitutional, and the Court's own reasoning demonstrates it. Congress failed to justify the current burdens of Section 5 with a record showing current needs, especially after expanding its reach in 2006 even as conditions in covered jurisdictions improved dramatically. By declining to hold Section 5 unconstitutional, the Court needlessly prolongs the demise of a provision whose invalidity is the inevitable conclusion of its analysis.

Dissent (Ginsburg, J.) Congress, not the Court, decides whether Section 5 remains justified, and its judgment merits substantial deference because the Civil War Amendments expressly empower Congress to enforce voting rights through appropriate legislation, with the question being only whether Congress used rational means. After extensive hearings and a record exceeding 15,000 pages, Congress found that second-generation barriers such as vote dilution, racial gerrymandering, and at-large voting persisted, that preclearance blocked over 700 discriminatory changes between 1982 and 2006, and that covered jurisdictions accounted for a disproportionate share of successful Section 2 suits. The success of the Act is the reason to retain it: throwing out preclearance when it is working is like throwing away your umbrella in a rainstorm because you are not getting wet. The Court should not have entertained a facial challenge by Shelby County, whose own record of discrimination fully justifies coverage, and the Act's severability clause counsels limiting any ruling to unconstitutional applications. The majority also contradicts Katzenbach, which held that the equal sovereignty principle applies only to the admission of new States, and ignores the legislative record. The majority answers that it is not ignoring the record, only recognizing that the record played no role in shaping the formula before the Court.