August 30, 2013
Practice Group(s):
Public Finance
Alaskan Jurisdictions No Longer Need
DOJ Preclearance
By Scott A. McJannet, Tia A. Sargent, David O. Thompson and Cynthia M. Weed
In its recent decision in Shelby County v. Holder, the United States Supreme Court struck down the
preclearance requirement under the Voting Rights Act (the “VRA”) for most jurisdictions seeking to
make changes to “any voting qualification or prerequisite to voting, or standard, practice, or procedure
with respect to voting.” This requirement applied to all jurisdictions in Alaska.
The Shelby decision, discussed in more detail below, invalidates the “opt-in” coverage formula of
Section 4 in the VRA – and as a result, the state of Alaska and local jurisdictions no longer need to
seek preclearance for changes in their election procedures. The Court determined that the coverage
formula in the VRA is outdated and thus unconstitutional. Without a formula, there are no Section 4
covered jurisdictions to which the preclearance requirements apply.
The Court invited Congress to pass a new coverage formula using current data and reflective of
changes since the VRA was first passed in 1965, but such action by Congress may be unlikely in the
near future.
Without a new Congressional formula to revive the default coverage of Section 4 of the VRA, the
Department of Justice (the “DOJ”) has confirmed that Alaska and other covered jurisdictions are not
required to comply with the Section 5 preclearance requirements.
Even without Congressional action, however, the VRA and its Section 5 preclearance requirements
remain valid. The DOJ may still affirmatively “bail in” jurisdictions under Section 3(c) if it finds
thata jurisdiction has adopted policies or practices that have the effect of discriminating against racial
or ethnic groups. For example, the DOJ has recently moved to “bail in” the state of Texas under
Section 3(c) in Perez v. Texas, in part due to Texas’s 2011 redistricting effort that was found to be
discriminatory. Finally, private citizens may file suit under Section 2 of the VRA. These possibilities
seem remote for Alaskan jurisdictions.
For the time being, Alaskan jurisdictions do not need to budget the time or resources previously
required for seeking DOJ preclearance under the Voting Rights Act.
More about the Shelby County v. Holder decision…
On July 25th, 2013, the United States Supreme Court held in a 5-4 decision that Section 4(b) of the
Voting Rights Act (“the VRA”) is no longer constitutional, reasoning that its coverage formula is
outdated and based on obsolete data no longer responsive to current needs. Shelby County. v. Holder,
570 U.S. ___, ___ (2013) (slip op. at 2); see also Northwest Austin Municipal Util. Dist. No. One v.
Holder, 557 U.S. 193, 203 (2009). This holding will have broad implications for jurisdictions that
were previously required to comply with preclearance under the VRA. Because the formula used to
identify covered jurisdictions no longer exists, previously covered jurisdictions will no longer have to
comply with VRA preclearance unless Congress enacts a new formula, updated for current conditions.
Alaskan Jurisdictions No Longer Need DOJ Preclearance
Congress initially passed the VRA in 1965 in order to counter pervasive racial discrimination in the
nation’s voting practices. Section 2 of the VRA, which bans any “standard, practice, or procedure”
resulting “in a denial or abridgement of the right of any citizen… to vote on account of race or color”
continues to exist, and is not affected by the Court’s decision in Shelby. 42 U.S.C. § 1973(a). Section
2 banned practices such as the use of voting literacy tests – tests that were shown to disproportionately
affect communities of color. Section 4 of the VRA set forth a coverage formula that identified U.S.
political subdivisions with a history of discriminatory voting practices resulting in low voter turnout.
42 U.S.C. § 1973b(b). If identified under the Section 4 formula, Section 5 of the VRA prohibited
those jurisdictions from making any changes to voting practices without first applying for
“preclearance” for the change from the U.S. Department of Justice. 42 U.S.C. § 1973 c(a).
Jurisdictions that were subject to the preclearance requirement eventually had the option to “bail out”
from the preclearance process by demonstrating compliance with objective statutory criteria for a
period of ten years, indicating that discriminatory voting practices were no longer an issue for that
area. Congress recently reauthorized the VRA for an additional 25 years in 2006.
In striking down the Section 4 preclearance formula, the Court reasoned that the extraordinary
measures previously employed by the VRA are no longer appropriate or justified, considering the
changes that have occurred in covered jurisdictions. Shelby at 12-15. The Court sharply questioned
the VRA’s departure from traditional models of federalism and stated, “things have changed
dramatically.” Id. at 10-13. Citing increased voter turnout, increased minority voter registration, and
other improvements that have taken place since 1965, the Court held that Section 4(b)’s formula is no
longer relevant and may not be used. Id. at 14-15; 24. Accordingly, there is currently no way to
identify any jurisdictions covered under the formula and preclearance will no longer be required
unless Congress creates a new, updated formula.
The full decision can be read here.
Authors:
Scott A. McJannet
Scott.McJannet@klgates.com
+1.206.370.8190
Tia A. Sargent
tia.sargent@klgates.com
+1.206.370.8075
David O. Thompson
david.thompson@klgates.com
+1.206.370.8395
Cynthia M. Weed
cynthia.weed@klgates.com
+1.206.370.7801
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Alaskan Jurisdictions No Longer Need DOJ Preclearance
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