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August 12, 2013

Establishing Coverage Formula for Voting Rights Act



RESOLVED, That the American Bar Association urges the United States Congress to act expeditiously to preserve and protect voting rights by legislating a coverage formula setting forth the criteria by which jurisdictions shall or shall not be subject to Section 5 preclearance and/or by enacting other remedial amendments to the Voting Rights Act of 1965, including but not limited to, strengthening the litigation remedy available under Section 2, or expanding the “bail-in” provision under Section 3 (or some combination of these concepts), in response to Shelby County v. Holder.


When the Supreme Court ruled in Shelby County v. Holder on June 25, 2013, it took away one of the most effective remedies against racially discriminatory voting laws that this country has ever seen.  This resolution calls upon the United States Congress to pass legislation that would have the effect of reinstating the principles afforded by this remedy.  By ruling Section 4 of the Voting Rights Act of 1965 ("VRA") unconstitutional in Shelby County, the Court also effectively eviscerated Section 5, the provision that required certain jurisdictions' voting changes to be "precleared" by the United States Department of Justice or a 3-judge panel of the U.S. District Court for the District of Columbia before they could go into effect.  The "coverage formula" contained in Section 4, which established the standards by which certain jurisdictions would be required to seek preclearance, had been reauthorized repeatedly by Congress--in fact, as recently as 2006 by a unanimous vote in the Senate and a wide majority in the House of Representatives. 

Shelby County's Damage to Voting Rights

With no coverage formula in place, however, Section 5 is largely an empty promise and cannot be enforced. Indeed, preclearance of voting changes will not be available at all, except in the few circumstances described under the "bail-in" provision of Section 3. Thus, there is currently no generally applicable pre-implementation backstop against discriminatory voting changes, which, prior to the Supreme Court's ruling, were required to be precleared in all or part of 16 states. Justice Roberts' majority opinion in Shelby County issued a challenge to the Congress to come up with a constitutional coverage formula or risk a long-term or permanent loss of Section 5's preclearance provision.

Some of the academic and political debate since the decision has focused on Section 2 of the VRA, and whether it is an equally effective tool for plaintiffs raising racial discrimination claims under the Voting Rights Act. But anyone familiar with the history of litigation under Section 2 would have to conclude it is not. (It should also be noted that some of the same "experts" who have sung the praises of Section 2 in recent days have expressed doubts about its constitutionality.) Of course, Section 2 applies nationwide and prohibits voting discrimination on the basis of race, color, or language minority status. However, unless a court grants an injunction, which is extremely rare in Section 2 cases, it can only be used once an allegedly discriminatory law goes into effect and not before.

Litigating a Section 2 case is also far more expensive and time-consuming than a Section 5 preclearance case, even when the jurisdiction chooses to go to court rather than opting for administrative preclearance, which is by far the cheapest and quickest alternative. In addition, Section 5 also requires covered jurisdictions to inform the Department of Justice of all of their voting changes, to the great benefit of the public. Without this systematic information flow, it will be nearly impossible for interested parties to be aware of new laws and procedures at all levels of government until they are implemented, when it is often too late to combat them without deleterious effects on voters and on the electoral process itself.

Whether by enacting a new coverage formula under Section 4, strengthening the litigation remedy available under Section 2, or expanding the "bail-in" provision under Section 3 (or some combination of these concepts), Congress must act to redress the severe blow the Supreme Court dealt voting rights in Shelby County. The ABA should be on record in support of the continuing vitality of the Voting Rights Act, as it has been for many years.

The ABA's Longtime Support of the Voting Rights Act

As the national voice of the legal profession, the ABA has taken special responsibility for protecting the rights guaranteed by the Constitution and fostering the rule of law. In 1973, for example, the ABA created a committee (now the Standing Committee on Election Law) to examine and develop ways to improve the federal electoral process. In 1981, when Congress began hearings on the reauthorization of the Voting Rights Act, the Committee held a symposium attended by representatives from congressional committees, civil rights groups, academia, and state governments. In recommending that the ABA support reauthorization of the VRA, the committee reported that the Act "has not only enhanced the political posture of minority groups, but it has also advanced the very ideals that make our country's governmental system unique in political history." The committee also reported:

The Voting Rights Act has been called the most effective civil rights law ever enacted in view of the large number of minority politicians elected to office subsequent to its passage. There is clear evidence that as soon as the Act comes into play, the number of minority politicians elected to office increases dramatically. Also, there is general agreement that the Act has been instrumental in developing a political community of interest and awareness in minority communities.

In 2005, the ABA adopted a policy that supported the 25-year extension of the VRA, stating in the accompanying Report that "despite the progress that has been made since the passage of the Act, members of minority groups still face discrimination in exercising their right to vote." ABA 2005 Report with Recommendation #108 at 1. Reauthorization would "enable continued efforts to prevent and dismantle discrimination in voting[,]" "enhance access to the political process, deter and/or document ongoing abuses and prohibit discriminatory voting practices.". As the Report concluded, "because of the persistence of discriminatory behavior in the election process," the ABA sought "to ensure that the Act remains a valuable tool in the struggle to preserve and protect voting rights for all Americans."

The ABA reaffirmed this policy in 2006, pursuant to which it participated in the congressional debates on the VRA's 2006 reauthorization, ABA 2006 Report with Recommendation,  stating that Section 5 is one of the Act's "most important and effective" provisions; that it, along with its companion provisions, "will continue to be important factors and safeguards in making available the right to vote to all segments of our population\u2026"


Beyond the question of whether there are adequate remedies under the law without Section 5 preclearance, or whether the racial conditions addressed by the VRA are a thing of the past, we must take the Court at its word that Congress can reinvigorate Section 5 by legislating a new coverage formula for Section 4. Within hours of the Court’s decision in Shelby County, some jurisdictions that had been subject to preclearance under Section 5 announced that they would move to implement laws that had been blocked by the courts or by the Department of Justice. Thus, the harm caused by the loss of this unique remedy is immediate, real, and not speculative. It is essential that Congress act with similar dispatch. The fact that there have been improvements in the racial composition of the electorate—and the diversity of our elected officials—since 1965 is a direct result of the protections of the Voting Rights Act and would not have happened without them. As Justice Ginsburg so aptly put it in her dissent, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory voting changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Respectfully Submitted,

Christopher Kearney
President, Bar Association of San Francisco
Stephen J. Wermiel
Chair, Section of Individual Rights and Responsibilities
August 2013