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On June 25, 2013, the United States Supreme Court handed down a landmark decision that held unconstitutional a key provision of the Voting Rights Act of 1965. Shelby County v. Holder, ____ U.S. _____ (2013). Since the Voting Rights Act was first adopted by Congress, it has had a “preclearance” requirement under which “covered jurisdictions” must obtain prior approval – either from the United States Attorney General or a district court of the District of Columbia – that any proposed election change is non-discriminatory. In Shelby County, the Supreme Court held unconstitutional the formula that determined which states and counties were covered by the preclearance requirement. The rationale of the 5-justice majority of the Court was that the formula, originally adopted in 1965, was unconstitutional because it was no longer based on facts that were pertinent to voting and racial discrimination today. “The formula [from 1965] can no longer be used as a basis for subjecting jurisdictions to preclearance.”
While sometimes burdensome, Section 5 has been widely credited with advancing minority voting rights and election opportunities, particularly among African Americans in the southern states. The Supreme Court’s decision nominally leaves it open for Congress to fashion another coverage formula that might pass constitutional muster, but whether any revised formula that might be enacted would ever satisfy the Supreme Court is questionable.
Persons who supported the continuation of Section 5 believe that racial discrimination, and election and voting discrimination in particular, will become a greater problem in once-covered areas now that the deterrent of Section 5 is gone. The supporters of the Supreme Court’s decision claimed that relieving the southern states from this burden was long overdue.
Attorneys at Parks, Chesin & Walbert have been involved in many election cases and voting rights matters. David Walbert has tried more Section 5 preclearance cases in the District of Columbia than any other attorney, and he has testified before both the House and Senate Judiciary committees regarding the Voting Rights Act. Both Walbert and Lee Parks have argued voting rights and discrimination cases in the United States Supreme Court on a number of occasions, as well as in the lower federal courts. See, e.g., Georgia v. Ashcroft, 539 U.S. 461 (2003); Cox v. Larios, 542 U.S. 947 (2004); Miller v. Johnson, 515 U.S. 900 (1995); Abrams v. Johnson, 521 U.S. 74 (1997); Rogers v. Lodge, 453 U.S. 613 (1982); Brooks v. Georgia, 516 U.S. 1021 (1995); Wright v. Dougherty County, Ga., 358 F.3d 1352 (11th Cir. 2004); Brooks v. Miller, 158 F.3d 1230 (11th Cir. 1998); Brooks v. Georgia State Bd. Of Elections, 59 F.3d 1114 (11th Cir. 1995); Thomasville Branch of NAACP v. Thomas County, Georgia, 688 F.2d 280 (5th Cir. 1982).