Voting Rights Act Preclearance is Dead: Practical Considerations
Published for Coates' Canons on July 02, 2013.
Section 4 of the Voting Rights Act of 1965 is unconstitutional. So said the Supreme Court of the United States on June 25, 2013, in the case of Shelby County v. Holder. Section 4 identified the jurisdictions in the nation that were required under Section 5 of the Act to submit changes related to voting for approval by the U.S. Department of Justice, in a process known as “preclearance.” With Section 4 unconstitutional, Section 5 is left without force. It is, for all practical purposes, dead. See Michael Crowell’s blog post here.
What, exactly, does that mean for North Carolina’s 40 counties that were covered by Section 4? For decades, those counties and their cities and school boards and boards of elections have been required to submit elections changes for preclearance. For elections changes made starting now they no longer have to do that. Their preclearance obligation with respect to those future changes has ended.
But what about elections changes already made? How are they affected? My best guesses follow. Let me say that again. What follow are my best guesses. There is no statute in place that describes how the Shelby County decision affects changes already made. There is no obvious legal precedent from other contexts to clearly show the way; as Chief Justice Roberts said, in his Shelby County opinion, Sections 4 and 5 were “extraordinary measures,” unique in their enforcement mechanism. And, it appears, no guidance has yet come from the Attorney General of the United States or from the Voting Section of the U.S. Department of Justice.
Below are the situations I can think of. To consider about these situations, imagine, in a Section 5 jurisdiction, a city council enacts, in the regular course of things, an ordinance changing the terms of the city council members from two years to four.
1. All of the following happened before June 25, 2013: the ordinance was enacted, it was submitted for preclearance, and the Justice Department precleared it.
- Current consequence: The ordinance is in effect.
- Why? Everything happened according to then-applicable law.
- What is required now? Nothing.
- Current consequence: The ordinance is effective.
- Why? It should not have gone into effect, but it did, and it remains in effect. This may be the most difficult situation to consider and I realize that there is a counter argument to be made here. That argument would say that the ordinance never lawfully became effective, under the law previously applicable, and the Shelby County decision does not act to cure the old defect. I understand this argument, but I do not believe that it is the better argument. That’s my guess.
- What is required now? Nothing, except that in an abundance of caution, the council could reenact the ordinance.
- Current consequence: The ordinance is not in effect.
- Why? Under law then-applicable, it never went into effect. The subsequent declaration of unconstitutionality of the statute under which its effectiveness was blocked does not revive it. Otherwise, uncertainty would reign. What other changes previously enacted but blocked might be lingering around forgotten? What other changes subsequently enacted would be adversely affected by the unexpected reinvigoration of the old enactments? A bill currently pending in the North Carolina General Assembly—S 406—will, if enacted, explicitly repeal any state or local government law, ordinance, or resolution to which the Department of Justice objected. That bill would confirm the answer to this situation.
- What is required now: The ordinance would have to be reenacted in order to become effective.
- Current consequence: The ordinance is effective.
- Why? The statute under which its effectiveness was pending has been declared unconstitutional and cannot block the effectiveness. Nonetheless, a statement attributed today to the head of the Voting Section of the Department of Justice makes it appear that as of this moment the Department of Justice intends to continue to process submissions currently pending. If that is in fact the case, it is puzzling, since it would seem, to me at least, that an objection interposed by the Department of Justice as part of this post-Shelby County processing of submissions would have no effect.
- What is required now? Nothing, except that in an abundance of caution, perhaps the submission should be withdrawn. In further caution, the council could (1) pass a resolution declaring the effectiveness of the ordinance without preclearance or (2) reenact the ordinance.
- Current consequence: the ordinance is effective.
- Why? Preclearance is no longer required; Section 5’s requirement that the ordinance cannot take effect until it is precleared is no longer effective.
- What is required now? Nothing, except that in an abundance of caution, the council could (1) pass a resolution declaring the effectiveness of the ordinance without preclearance or (2) reenact the ordinance.
- Current consequence: the ordinance is effective.
- Why? Section 4’s unconstitutionality renders Section 5’s preclearance requirement a nullity.
- What is required now? Nothing
Public Officials - Local and State Government Roles
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