SCOTUS knocks out Section 4, not 5 of VRA, accomplishes same thing


Today in Shelby County v. Holder, the Supreme Court struck down a key part of the Voting Right Act of 1965, however, it wasn’t the part everyone thought would be struck down. The VRA has a special provision called Section 5, which required jurisdictions with a history of unfair election practices that deprived minority populations of their right to vote to submit any changes in voting rules (chiefly regarding redistricting) for approval to the Justice Department BEFORE they took effect. Most of these covered jurisdictions were in the South:



Section 4 provides the formula that determines which jurisdictions above are blue and which are gray, and it was that provision of the VRA that SCOTUS struck down. In a 5-4 decision, and despite overwhelming Congressional approval as recently as 2006, SCOTUS declared that the preclearance formula was the problem. This result was actually presaged by Northwest Austin v. Holder, decided by the court in 2009 when it held that the VRA “imposes current burdens and must be justified by current needs” and concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” 557 U. S., at 203.

Thus, Shelby County went the rest of the way and said that any preclearance restriction must be based upon current data, and current decision making. Congress, of course, can create a new formula, but that seems entirely unlikely.

And this from Georgia’s Attorney General:

Attorney General Sam Olens released the following statement regarding the decision by the Supreme Court of the United States in Shelby County v. Holder.

“When the Voting Rights Act was passed in the 1960s, several states and local jurisdictions, including Georgia, discriminated against minority voters. Discrimination is wrong, and Section 5 was an appropriate response.

I am pleased, however, that the Supreme Court recognized today that, “[n]early 50 years later, things have changed dramatically.”

The Voting Rights Act will continue to protect the rights of all voters in all states, but will no longer treat some states differently based on outdated formulas that, thankfully, no longer reflect current practices.

Section 2 of the Voting Rights Act makes clear that racial discrimination in voting is illegal nationwide, and remains a strong and effective tool to counter discrimination.”


  1. So my question is this – what if a jurisdiction, covered under the original map or not – does something like move a precinct from a school to a formerly segregated club (actual thing that happens). Does the plaintiff just have an extra hurdle to clear and can still get relief?

    • Stefan says:

      Yes, that’s correct, but they will have to go to court under Section 2, with all the fun that entails. There are still notice requirements, etc, that if met should give you enough time, but it will be a race to the courthouse in many cases.

    • Stefan says:

      What I imagine will happen is either a) DoJ will compel submission through threatened litigation and issue findings (and then sue if discriminatory under section 2, or b) will come up with a new formula on their own as regulation, and then use that as a basis for their own actions or let it be used as a framework for voting rights groups.

  2. Second question – can Georgia Democrats now sue against the Republicans’ legislative maps here, which were admitted racial gerrymanders (Lindsay and others saying how they had to pack black voters to comply with Section 5) and get them tossed now that the reason for the packing doesn’t exist anymore?

    • Stefan says:

      Those districts are terrible, agreed, but the “packing” that occurs wasn’t just to satisfy Section 5, but to satisfy the VRA in general. It was assumed you could not dilute minority voting strength, and the easiest way to do that and benefit the majority party was packing.

      However, since their stated reason was DoJ preclearance, you’d think they’d want to revisit the issue anyway and make the districts fair, wouldn’t you?

      • sockpuppet says:

        The GOP should show the same concern over fairness in redistricting that the Democrats showed them all those years. Remember Roy Barnes’ multi-member district gimmick designed solely to keep the GOP in control of the state house? Stuff like that.

        The funny thing is that the DPOG should have seen this coming and implemented “independent” and “nonpartisan” (wink wink) redistricting commissions that JUST HAPPEN to almost always side with the Democrats due to the rules governing the makeup and work of such a commission as has been done in other states. But the DPOG refused to give up a little power in the interests of preserving some power down the line because they refused to acknowledge that the days of their being in complete power was coming to an end. Had the DPOG instituted an independent commission in the Barnes era, your side would have a bench deeper than John Barrow and Michelle Nunn right now. So no use asking the GOP to come pull you out of that pit that you dug for yourselves.

        • Maybe, maybe not. The 2004 court map for the legislature is pretty much what an independent commission would have done in 2001 had it existed – and that was not good for the Democrats. Of course, the 2011 maps are even worse, so you never know.

          We’ll eventually have a Democratic governor and a Republican legislature, which should allow for some interesting disricting processes.

  3. Doug Deal says:

    I am only halfway serious, but sometimes I think the best way to handle government is to just select representatives at random and boost their numbers. By the very nature of statistics, you will get a more representative government than one that is elected and you would even balance racial, economic, ethnic and regional issues in accord with the general population. No more gerrymandering, no more complaints of racial bias and no more expensive campaigns.

    • Not a terrible idea for sure. I kind of like the idea of giving every Georgian 14 votes for Congress and allowing them to apportion them how they please. If I really want Hank Johnson in Congress, I can vote all 14 for him. Or I can throw some to Barrow etc.

      • Doug Deal says:

        That’s an interesting idea Chris. Another I had was to give everyone 1 vote and they pick the one they like the best and the top 14 statewide win the 14 seats. I think I like your idea better.

          • Only with a very literal interpretation. Whether everyone has 1 vote or 14, they have the same number of votes to apportion.

            Compared to using drawn districts, it is fairer in that it gives power to every individual voter – if you want a Congressman from Whatever county or area, feel free to cast all 14 for that person. If you want to send a message and choose a partisan warrior, cast all 14 for them. Or split your votes how you see fit, picking people from different parties or different people from the same party.

            You could make a good argument right now that most people do not have “one vote” in most legislative elections – in 13 of the 14 districts in Georgia, unless you vote in the primary of the majority party, you don’t have much of a say. True anyone can choose to vote in that primary, but that’s kind of a distortion in and of itself.

            The only downside (other than potentially confusion but voters are smarter than we give them credit for) compared to districts is that not all segments of the population participate or are eligible to participate at the same rate. So 700,000 black Georgians will have a smaller percentage of voting age population (more children) and also fewer people eligible to vote (smaller citizen percentage and more disenfranchised) than 700,000 white Georgians. When you draw districts with race, that’s less of a problem. When everyone votes together, there are some one person, one vote fairness issues.

            But still, I think it beats redistricting. I think you could use some sort of primary system to sort the ballot – since it would necessarily have a lot of people on it. Have a one vote primary and sort the general ballot by county or precinct by the people who got the most single votes. In DeKalb, in a congressional race, you’d probably then see Hank Johnson, Tom Brown, Tom Price, John Lewis near the top, but you’d still have the rest of the list including Barrow, Austin Scott etc for the rest of the ballot.

      • Doug Deal says:

        Similar, but not quite. There would probably have to be a signup process in there and things like remote participation, instead of having everyone in Washington DC.

        I was thinking that it could be a good third branch of Congress. After the Senate and House comes together, the 10,000 randoms get 1 week to examine and debate the bill and give it a thumbs up or down without amendment before it goes to the President for signature. Then give the Congress the power to bypass this step with a 2/3 margin in both houses for emergency legislation.

  4. Charlie says:

    Georgia rep. thrilled to finally see equality among states becoming a reality

    WASHINGTON, D.C. – Congressman Doug Collins (R-GA) has released a statement after learning of the Supreme Court’s decision to void Section 4 of the Voting Rights Act of 1965:

    “Today’s decision by the Supreme Court gives equality to every American in the way we elect our leaders and civil servants,” said Collins. “That’s exciting news for our country, and something I am very proud to finally see take place. Coming from one of the 15 states that has been impacted by this provision of the 1965 legislation for almost half a century, today’s landmark ruling is encouraging and uplifting for the future changes Congress can make to ensure fairness to every single person who comes to the polls on election day to take part in our electoral process. But this morning’s news does not mean our fight for voting equality is done. Even in the divisive times we find ourselves in right now, Congress must find a way to come together, make smart decisions for the wellbeing of our citizenry, and rework the current formula to get it right. We call ourselves the freest country in the world, well it is time to start acting like it and put our own people before the politics.”

  5. Charlie says:

    From Congressman Westmoreland:

    WASHINGTON, D.C. – In a ruling in the Shelby County v. Holder case, the Supreme Court has struck down Section 4 of the Voting Rights Act (VRA), ruling it unconstitutional. It upheld Section 5, the preclearance requirement, but stated the formula used to set which states must have preclearance is outdated and therefore unconstitutional.

    “We no longer suffer from the voting rights issues we saw in 1965 that led to the passage of the Voting Rights Act,” stated Westmoreland. “Over the last 48 years, we have seen huge strides in minority voting and in minority representation on a local, state, and federal level. In my home state of Georgia, we had 582 African American elected officials in 2000 – up from just 30 in 1970. This shows that the VRA has worked and it is now time to update the law to reflect these changed conditions. The Supreme Court’s decision will not weaken the positive impact the VRA had on our country nor will it diminish the importance of the Civil Rights Movement. It simply acknowledges the progress that has been made since 1965.”

    Chief Justice John Roberts, writing for the majority, stated that lawmakers simply “reenacted a formula based on 40-year-old facts, having no logical relationship to the present day” when they reauthorized the legislation in 2006 without updating it. At that time, Congressman Westmoreland fought to have an amendment added that would update the formula – the very portion of the law that was struck down – to reflect more modern information.

    “This ruling should not come as a surprise,” stated Westmoreland. “The Supreme Court urged Congress in 2009 to update the Voting Rights Act because it ‘raises serious constitutional concerns’ and ‘differentiates between states in ways that may no longer be justified.’ That’s because this law used outdated information to set the formula for preclearance and punished certain areas of the country for the sins of their fathers and grandfathers. To put it in perspective, a person who became eligible to vote the year the VRA was signed into law became eligible for Medicare last year. That’s why I pushed so hard to update the coverage formula – the portion the Court struck down – when the VRA came up for reauthorization in 2006. Unfortunately, my pleas fell on deaf ears and the law was not updated. If my colleagues had only joined me in updating the law, we would not be at a place where the VRA has essentially become toothless.”

    The Court urged Congress to update the formula to reflect more modern data and Congressman Westmoreland hopes that this happens. He would like to see the formula updated to use the three most recent presidential elections and then have that formula reapplied to all states and jurisdictions to determine which areas would require preclearance.

  6. Charlie says:


    Georgia and the rest of the nation have made tremendous progress in the past 50 years. In recognizing that the current formulation for protection in Section Four of the Voting Rights Act is outdated and obsolete, the Supreme Court validated this progress today. Our Constitution, our Bill of Rights and Section Two of the Voting Rights Act prohibit any form of racial discrimination within the democratic process. As Georgia’s chief elections official, it is my sacred duty to uphold this.

  7. pettifogger says:

    Charlie, any idea if similar public statements have been made by the same figures prior to the decision?

    Wouldn’t surprise me if a lot of folks come out now, after the fact, given the stigma that comes with opposing anything to do with the VRA.

Comments are closed.