The Post- Shelby Landscape: The Role of Federalism in Elections

by: Ava Fisher


The Voting Rights Act of 1965 (VRA) marked a significant congressional response to racially discriminatory election laws [i]. While the Fifteenth Amendment attempted to enfranchise racial minorities, it lacked means of enforcement [ii]. In response, the VRA established federal authority over state election laws [iii]. This federal enforcement power derived from preclearance through Section 5 of the VRA. States covered under preclearance, determined by the coverage formula of Section 4(b), were required to submit proposed changes to election laws to the U.S. Department of Justice. The coverage formula pertained to states that were found to employ discriminatory election practices, as determined by measures of African American political participation in 1964 [iv]. This practice of preclearance remained in effect from the adoption of the VRA in 1965 until the 2013 ruling of Shelby County v. Holder [v]

This comment will explore the political environment that inspired the ruling of Shelby, as well as previous cases regarding the constitutionality of preclearance. Rulings on preclearance reveal differing attitudes surrounding federalism and its role in protecting voting rights for minority populations. Given this continued debate, any proposed legislation regarding preclearance must address the constitutionality of subjugating particular jurisdictions to federal intervention. Proposed legislation may be justified by the opinions articulated in Shelby and other cases regarding preclearance. These opinions are valuable for the acceptance of election legislation as a legitimate and constitutional exercise of congressional power.

Judicial Attitudes Surrounding Preclearance

Prior to the ruling of Shelby in 2013, preclearance had been challenged many times [vi]. An analysis of the outcomes of these cases and the way they differ from the outcome of Shelby may yield an explanation as to how the political environment surrounding these cases impacted their rulings. An important case to an understanding of judicial attitudes surrounding preclearance is South Carolina v. Katzenbach [vii]. As the first constitutional challenge to the VRA, the case marks an important development in the nature of preclearance to be treated favorably by courts. In South Carolina v. Katzenbach, the State argued that multiple provisions of the VRA were an unconstitutional breach of congressional power, including the ability of the Attorney General to enforce these provisions through preclearance [viii]. The Court, as articulated by Justice Warren, denied this bill of complaint, upholding the constitutionality of the act through the application of the Fifteenth Amendment, which grants Congress the right to enforce racial equality in election practices [ix].

This ruling is important in the discussion of the constitutionality of Sections 4(b) and 5 of the VRA, which would later be challenged in Shelby [x]. The majority opinion justified the ability of the Attorney General to deny proposed election laws of covered states, as these states had been rightfully determined by Congress to employ discriminatory election practices [xi]. While the 8-1 ruling of South Carolina v. Katzenbach may be viewed as a success in the preservation of preclearance, the dissenting opinion by Justice Black reveals a continuing hesitance of courts regarding the constitutional nature of preclearance. While Justice Black agreed with the majority opinion that other provisions of the VRA were constitutional, he argued that Section 5 represented a breach of federal power not ordained in the Constitution [xii]. His dissent reveals the emergence of an ongoing debate over preclearance: whether the federal government may intervene in practices typically reserved for the States.

Avoidance of Section 5

After the favorable ruling in South Carolina v. Katzenbach, the constitutionality of preclearance was questioned further. Another case of interest to the discussion of preclearance is Northwest Austin Mun. Util. Dist. No. One v. Holder[xiii]. Northwest sought a declaratory judgement arguing that Section 5 of the VRA was unconstitutional and the district ought to be exempt from preclearance. The district argued that it did not have a history of discriminatory practices and must be subject to bailout of preclearance as defined by Section 4(a) of the VRA, as it was only subject to preclearance as a subdivision of Texas, a covered state[xiv]. The Court ruled in favor of the district, granting the jurisdiction the ability to be bailed out from preclearance coverage given the initial language of the VRA.

The decision of Northwest is of great value to an understanding of preclearance’s treatment by courts[xv]. In solely addressing the language of Section 4 (a) of the VRA, the court narrowly avoided a definitive ruling on the constitutionality of Section 5, leaving the provision vulnerable to further scrutiny in Shelby [xvi]. The Court addressed the changing political environment surrounding minority voting rights, yet did not reach a conclusion on preclearance itself. The Court based this ruling on the sanctity of judging an act of Congress, favoring instead to narrowly address the claims of the plaintiffs by granting them bailout [xvii]. Justice Thomas critiqued this action of avoidance in his dissent. While Justice Thomas concurred in the judgement in part, he argued against the constitutionality of Section 5 preclearance. He based this dissent on grounds that preclearance was beyond the scope of enforcement power under the Fifteenth Amendment, and simply clarifying the bailout provision did little to exempt eligible districts [xviii]. This is due to the nature of the bailout provision to be scarcely used and widely viewed as unattainable. Critics of the decision in Northwest likewise view this action by the Court as a missed opportunity to clarify the limits of congressional power. This inaction contributed to continued debate over the necessity and validity of preclearance as legislators and legal scholars debated the tradeoff of state sovereignty and the protection of minority voting rights [xix].

Shelby County v. Holder

The judicial discussion of the constitutionality of preclearance reached a more definitive answer in Shelby County v. Holder in 2013. Shelby County, Alabama argued that Sections 4 (b) and 5 of the VRA were unconstitutional given the burden they placed on specific states, not all, to preclear changes to election laws [xx]. The majority opinion of the court, delivered by Chief Justice Roberts, articulated that Section 4(b) was indeed unconstitutional, due to the fact that it relied on outdated information regarding states’ discriminatory practices. Citing increased African American political participation in preclearance since the adoption of the VRA, the Court viewed the antiquated coverage formula as irrelevant to the contemporary political environment [xxi]. While not explicitly ruling on Section 5 preclearance, this action rendered the provision obsolete as it no longer applied to any jurisdictions.

Justification for Preclearance Legislation

This avoidance of Section 5 continues the trend of upholding the constitutionality of preclearance in a manner that provides support for further preclearance legislation. A vital takeaway from Chief Justice Robert’s statement is his reliance on Congress to enact a revised coverage formula for preclearance that is more reflective of recent election laws[xxii]. The restoration of preclearance may also be justified through Justice Ginsberg’s dissent, in which she argued the ability of Congress to enact voting rights legislation through the enforcement powers of the Fourteenth and Fifteenth Amendments [xxiii].

Any proposed preclearance legislation may also be justified under the Elections Clause [xxiv]. Though the Elections Clause gives the federal government the ultimate authority over the conduct of elections, it has been traditionally ignored in favor of state sovereignty [xxv]. In order to justify preclearance legislation, one must weigh the priority of equal elections over traditional norms regarding federalism. The Elections Clause has received favorable rulings, such as in the case of Arizona v. Inter-Tribal Council of Arizona, in which the Court ruled in favor of congressional authority in the National Voter Registration Act [xxvi]. The majority opinion of the case, articulated by Justice Antonin Scalia, argued that the state’s strict proof of citizenship requirement undermined congressional power over elections [xxvii]. This ruling addresses a key consideration in the endeavor to restore preclearance, as the original coverage formula was deemed unconstitutional.

Conclusion: Proposed Legislation

Given the ruling of the original coverage formula as unconstitutional, a revised formula must be reflective of current election data. A promising piece of legislation regarding a revised form of preclearance is H.R. 4. The bill devises a coverage formula based on the past 25 years of elections, addressing Roberts’ claim that the formula was outdated [xxviii]. While the bill has passed the House, it may require amendments to pass the Senate. One such proposed amendment is the addition of a revised bailout system, in which eligible jurisdictions are automatically bailed out. This provision would address Justice Thomas’ view of the bailout provision to discourage eligible districts from seeking exemption from coverage.[xxix] In addition, Senators from relevant districts may be more willing to approve of legislation that allows for their jurisdictions to be removed from coverage.

The enactment of legislation such as this would not only be within the realm of congressional power, but a necessary action in the current political environment. Despite Robert’s claim that discriminatory election laws no longer occur, current election data reveals that minority registration and turnout have decreased at a disparate rate since the ruling of Shelby. Given this discriminatory impact, Congress ought to employ its constitutional power of authority over election laws to ensure minority political participation [xxx].


[i] Voting Rights Act of 1965 (VRA), Pub. L. 89-110, 79 Stat. 437.

[ii] U.S. CONST. amend. XV.

[iii] See Paul Finkelman, The Necessity of the Voting Rights Act of 1965 and the Difficulty of Overcoming Almost Century of Discrimination 76 La. L. Rev. 181, (2015) (regarding the origin and necessity of the Voting Rights Act of 1965).

[iv] Id., § 4(b), 5.

[v] Shelby County v. Holder570 U.S. 529 (2013), distinguished by Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, (2016).

[vi] Id.

[vii] South Carolina v. Katzenbach383 U.S. 301 (1986).

[viii] Id. at 332-33.

[ix] Id. at 326-27 (citing U.S. CONST. amend. XV., § 2, which reads “[t]he Congress shall have power to enforce this article by appropriate legislation.”).

[x] Shelby, 570 U.S. at 530.

[xi] South Carolina, 383 U.S. at 328-29.

[xii] Id. at 356.

[xiii] Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009).

[xiv] Id. at 193.

[xv] Id. at 195.

[xvi] See Franita Tolson, Reinventing Sovereignty?: Federalism as a Constraint on the Voting Rights Act65 Vand. L. Rev. 1195, (2012) (explaining the role of Northwest in the decision of Shelby).

[xvii] Northwest, 557 U.S. at 194.

[xviii] Id. at 212.

[xix] See Christopher B. Seaman, An Uncertain Future for Section 5 of The Voting Rights Act: The Need for a Revised Bailout System30 St. Louis U. Pub. L. Rev. 9, (2010) (arguing for a revised bailout system to strengthen future preclearance legislation).

[xx] Shelby, 570 U.S. at 530.

[xxi] Id. at 531 (arguing “it would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data.”).

[xxii] Id. at 592.

[xxiii] Id. at 560.

[xxiv] U.S. CONST. art. I, § 4 (stating “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”).

[xxv] See Conner Johnston, Proportional Voting Through the Elections Clause: Protecting Voting Rights Post-Shelby County, 63 UCLA L. v. 236, (2015) (proposing the Elections Clause as a justification of legislation).

[xxvi] Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1 (2013).

[xxvii] Id. at 1.

[xxviii] Voting Rights Advancement of 2019, H.R. 4, 116th Cong. (2019).

[xxix] Northwest 557 U.S at 212.

[xxx] See Nicholas Stephanopoulos, The South After Shelby County, 2013 Sup. Ct. Rev. 55, (2013) (revealing the effects of the Shelby on minority registration and voter turnout).