Shelby County v. Holder , 133 S. Ct. 2612 ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY
GENERAL, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 12–96. Argued February 27, 2013—Decided June 25, 2013
The Voting Rights Act of 1965 was enacted to address entrenched racial
discrimination in voting, “an insidious and pervasive evil which had
been perpetuated in certain parts of our country through unremitting
and ingenious defiance of the Constitution.” South Carolina v. Kat-
zenbach, 383 U. S. 301, 309. Section 2 of the Act, which bans any
“standard, practice, or procedure” that “results in a denial or
abridgement of the right of any citizen . . . to vote on account of race
or color,” 42 U. S. C. §1973(a), applies nationwide, is permanent, and
is not at issue in this case. Other sections apply only to some parts of
the country. Section 4 of the Act provides the “coverage formula,” de-
fining the “covered jurisdictions” as States or political subdivisions
that maintained tests or devices as prerequisites to voting, and had
low voter registration or turnout, in the 1960s and early 1970s.
§1973b(b). In those covered jurisdictions, §5 of the Act provides that
no change in voting procedures can take effect until approved by
specified federal authorities in Washington, D. C. §1973c(a). Such
approval is known as “preclearance.”
The coverage formula and preclearance requirement were initially
set to expire after five years, but the Act has been reauthorized sev-
eral times. In 2006, the Act was reauthorized for an additional 25
years, but the coverage formula was not changed. Coverage still
turned on whether a jurisdiction had a voting test in the 1960s or
1970s, and had low voter registration or turnout at that time. Short-
ly after the 2006 reauthorization, a Texas utility district sought to
bail out from the Act’s coverage and, in the alternative, challenged
the Act’s constitutionality. This Court resolved the challenge on
statutory grounds, but expressed serious doubts about the Act’s con-
2 SHELBY COUNTY v. HOLDER
Syllabus
tinued constitutionality. See Northwest Austin Municipal Util. Dist.
No. One v. Holder, 557 U. S. 193.
Petitioner Shelby County, in the covered jurisdiction of Alabama,
sued the Attorney General in Federal District Court in Washington,
D. C., seeking a declaratory judgment that sections 4(b) and 5 are fa-
cially unconstitutional, as well as a permanent injunction against
their enforcement. The District Court upheld the Act, finding that
the evidence before Congress in 2006 was sufficient to justify reau-
thorizing §5 and continuing §4(b)’s coverage formula. The D. C. Cir-
cuit affirmed. After surveying the evidence in the record, that court
accepted Congress’s conclusion that §2 litigation remained inade-
quate in the covered jurisdictions to protect the rights of minority
voters, that §5 was therefore still necessary, and that the coverage
formula continued to pass constitutional muster.
Held: Section 4 of the Voting Rights Act is unconstitutional; its formula
can no longer be used as a basis for subjecting jurisdictions to pre-
clearance. Pp. 9–25.
(a) In Northwest Austin, this Court noted that the Voting Rights
Act “imposes current burdens and must be justified by current needs”
and concluded that “a departure from the fundamental principle of
equal sovereignty requires a showing that a statute’s disparate geo-
graphic coverage is sufficiently related to the problem that it targets.”
557 U. S., at 203. These basic principles guide review of the question
presented here. Pp. 9–17.
(1) State legislation may not contravene federal law. States re-
tain broad autonomy, however, in structuring their governments and
pursuing legislative objectives. Indeed, the Tenth Amendment re-
serves to the States all powers not specifically granted to the Federal
Government, including “the power to regulate elections.” Gregory v.
Ashcroft, 501 U. S. 452, 461–462. There is also a “fundamental prin-
ciple of equal sovereignty” among the States, which is highly perti-
nent in assessing disparate treatment of States. Northwest Austin,
supra, at 203.
The Voting Rights Act sharply departs from these basic principles.
It requires States to beseech the Federal Government for permission
to implement laws that they would otherwise have the right to enact
and execute on their own. And despite the tradition of equal sover-
eignty, the Act applies to only nine States (and additional counties).
That is why, in 1966, this Court described the Act as “stringent” and
“potent,” Katzenbach, 383 U. S., at 308, 315, 337. The Court nonethe-
less upheld the Act, concluding that such an “uncommon exercise of
congressional power” could be justified by “exceptional conditions.”
Id., at 334. Pp. 9–12.
(2) In 1966, these departures were justified by the “blight of ra-
Cite as: 570 U. S. ____ (2013) 3
Syllabus
cial discrimination in voting” that had “infected the electoral process
in parts of our country for nearly a century,” Katzenbach, 383 U. S.,
at 308. At the time, the coverage formula—the means of linking the
exercise of the unprecedented authority with the problem that war-
ranted it—made sense. The Act was limited to areas where Congress
found “evidence of actual voting discrimination,” and the covered ju-
risdictions shared two characteristics: “the use of tests and devices
for voter registration, and a voting rate in the 1964 presidential elec-
tion at least 12 points below the national average.” Id., at 330. The
Court explained that “[t]ests and devices are relevant to voting dis-
crimination because of their long history as a tool for perpetrating
the evil; a low voting rate is pertinent for the obvious reason that
widespread disenfranchisement must inevitably affect the number of
actual voters.” Ibid. The Court therefore concluded that “the cover-
age formula [was] rational in both practice and theory.” Ibid.Pp. 12–13.
(3) Nearly 50 years later, things have changed dramatically.
Largely because of the Voting Rights Act, “[v]oter turnout and regis-
tration rates” in covered jurisdictions “now approach parity. Blatant-
ly discriminatory evasions of federal decrees are rare. And minority
candidates hold office at unprecedented levels.” Northwest Austin,
supra, at 202. The tests and devices that blocked ballot access have
been forbidden nationwide for over 40 years. Yet the Act has not
eased §5’s restrictions or narrowed the scope of §4’s coverage formula
along the way. Instead those extraordinary and unprecedented fea-
tures have been reauthorized as if nothing has changed, and they
have grown even stronger. Because §5 applies only to those jurisdic-
tions singled out by §4, the Court turns to consider that provision.
Pp. 13–17.
(b) Section 4’s formula is unconstitutional in light of current condi-
tions. Pp. 17–25.
(1) In 1966, the coverage formula was “rational in both practice
and theory.” Katzenbach, supra, at 330. It looked to cause (discrimi-
natory tests) and effect (low voter registration and turnout), and tai-
lored the remedy (preclearance) to those jurisdictions exhibiting both.
By 2009, however, the “coverage formula raise[d] serious constitu-
tional questions.” Northwest Austin, supra, at 204. Coverage today
is based on decades-old data and eradicated practices. The formula
captures States by reference to literacy tests and low voter registra-
tion and turnout in the 1960s and early 1970s. But such tests have
been banned for over 40 years. And voter registration and turnout
numbers in covered States have risen dramatically. In 1965, the
States could be divided into those with a recent history of voting tests
and low voter registration and turnout and those without those char-
4 SHELBY COUNTY v. HOLDER
Syllabus
acteristics. Congress based its coverage formula on that distinction.
Today the Nation is no longer divided along those lines, yet the Vot-
ing Rights Act continues to treat it as if it were. Pp. 17–18.
(2) The Government attempts to defend the formula on grounds
that it is “reverse-engineered”—Congress identified the jurisdictions
to be covered and then came up with criteria to describe them. Kat-
zenbach did not sanction such an approach, reasoning instead that
the coverage formula was rational because the “formula . . . was rele-
vant to the problem.” 383 U. S., at 329, 330. The Government has a
fallback argument—because the formula was relevant in 1965, its
continued use is permissible so long as any discrimination remains in
the States identified in 1965. But this does not look to “current polit-
ical conditions,” Northwest Austin, supra, at 203, instead relying on a
comparison between the States in 1965. But history did not end in
1965. In assessing the “current need[ ]” for a preclearance system
treating States differently from one another today, history since 1965
cannot be ignored. The Fifteenth Amendment is not designed to pun-
ish for the past; its purpose is to ensure a better future. To serve
that purpose, Congress—if it is to divide the States—must identify
those jurisdictions to be singled out on a basis that makes sense in
light of current conditions. Pp. 18–21.
(3) Respondents also rely heavily on data from the record com-
piled by Congress before reauthorizing the Act. Regardless of how
one looks at that record, no one can fairly say that it shows anything
approaching the “pervasive,” “flagrant,” “widespread,” and “rampant”
discrimination that clearly distinguished the covered jurisdictions
from the rest of the Nation in 1965. Katzenbach, supra, at 308, 315,
331. But a more fundamental problem remains: Congress did not use
that record to fashion a coverage formula grounded in current condi-
tions. It instead re-enacted a formula based on 40-year-old facts hav-
ing no logical relation to the present day. Pp. 21–22.
679 F. 3d 848, reversed.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concur-
ring opinion. GINSBURG, J., filed a dissenting opinion, in which BREYER,
SOTOMAYOR, and KAGAN, JJ., joined.
Cite as: 570 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–96
_________________
SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC
H. HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 25, 2013]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The Voting Rights Act of 1965 employed extraordinary
measures to address an extraordinary problem. Section 5
of the Act required States to obtain federal permission
before enacting any law related to voting—a drastic depar-
ture from basic principles of federalism. And §4 of the Act
applied that requirement only to some States—an equally
dramatic departure from the principle that all States
enjoy equal sovereignty. This was strong medicine, but
Congress determined it was needed to address entrenched
racial discrimination in voting, “an insidious and perva-
sive evil which had been perpetuated in certain parts of
our country through unremitting and ingenious defiance
of the Constitution.” South Carolina v. Katzenbach,
383 U. S. 301, 309 (1966). As we explained in upholding
the law, “exceptional conditions can justify legislative
measures not otherwise appropriate.” Id., at 334. Reflect-
ing the unprecedented nature of these measures, they
were scheduled to expire after five years. See Voting
Rights Act of 1965, §4(a), 79 Stat. 438.
2 SHELBY COUNTY v. HOLDER
Opinion of the Court
Nearly 50 years later, they are still in effect; indeed,
they have been made more stringent, and are now sched-
uled to last until 2031. There is no denying, however, that
the conditions that originally justified these measures no
longer characterize voting in the covered jurisdictions. By
2009, “the racial gap in voter registration and turnout
[was] lower in the States originally covered by §5 than it
[was] nationwide.” Northwest Austin Municipal Util. Dist.
No. One v. Holder, 557 U. S. 193, 203–204 (2009). Since
that time, Census Bureau data indicate that African-
American voter turnout has come to exceed white voter
turnout in five of the six States originally covered by §5,
with a gap in the sixth State of less than one half of one
percent. See Dept. of Commerce, Census Bureau, Re-
ported Voting and Registration, by Sex, Race and His-
panic Origin, for States (Nov. 2012) (Table 4b).
At the same time, voting discrimination still exists; no
one doubts that. The question is whether the Act’s ex-
traordinary measures, including its disparate treatment of
the States, continue to satisfy constitutional requirements.
As we put it a short time ago, “the Act imposes current
burdens and must be justified by current needs.” North-
west Austin, 557 U. S., at 203.
I
A
The Fifteenth Amendment was ratified in 1870, in the
wake of the Civil War. It provides that “[t]he right of
citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account
of race, color, or previous condition of servitude,” and it
gives Congress the “power to enforce this article by appro-
priate legislation.”
“The first century of congressional enforcement of the
Amendment, however, can only be regarded as a failure.”
Id., at 197. In the 1890s, Alabama, Georgia, Louisiana,
Cite as: 570 U. S. ____ (2013) 3
Opinion of the Court
Mississippi, North Carolina, South Carolina, and Virginia
began to enact literacy tests for voter registration and
to employ other methods designed to prevent African-
Americans from voting. Katzenbach, 383 U. S., at 310.
Congress passed statutes outlawing some of these practices
and facilitating litigation against them, but litigation
remained slow and expensive, and the States came up with
new ways to discriminate as soon as existing ones were
struck down. Voter registration of African-Americans
barely improved. Id., at 313–314.
Inspired to action by the civil rights movement, Con-
gress responded in 1965 with the Voting Rights Act.
Section 2 was enacted to forbid, in all 50 States, any
“standard, practice, or procedure . . . imposed or applied
. . . to deny or abridge the right of any citizen of the United
States to vote on account of race or color.” 79 Stat. 437.
The current version forbids any “standard, practice, or
procedure” that “results in a denial or abridgement of the
right of any citizen of the United States to vote on account
of race or color.” 42 U. S. C. §1973(a). Both the Federal
Government and individuals have sued to enforce §2, see,
e.g., Johnson v. De Grandy, 512 U. S. 997 (1994), and
injunctive relief is available in appropriate cases to block
voting laws from going into effect, see 42 U. S. C.
§1973j(d). Section 2 is permanent, applies nationwide,
and is not at issue in this case.
Other sections targeted only some parts of the country.
At the time of the Act’s passage, these “covered” jurisdic-
tions were those States or political subdivisions that had
maintained a test or device as a prerequisite to voting as
of November 1, 1964, and had less than 50 percent voter
registration or turnout in the 1964 Presidential election.
§4(b), 79 Stat. 438. Such tests or devices included literacy
and knowledge tests, good moral character requirements,
the need for vouchers from registered voters, and the like.
§4(c), id., at 438–439. A covered jurisdiction could “bail
4 SHELBY COUNTY v. HOLDER
Opinion of the Court
out” of coverage if it had not used a test or device in the
preceding five years “for the purpose or with the effect of
denying or abridging the right to vote on account of race or
color.” §4(a), id., at 438. In 1965, the covered States
included Alabama, Georgia, Louisiana, Mississippi, South
Carolina, and Virginia. The additional covered subdivi-
sions included 39 counties in North Carolina and one in
Arizona. See 28 CFR pt. 51, App. (2012).
In those jurisdictions, §4 of the Act banned all such tests
or devices. §4(a), 79 Stat. 438. Section 5 provided that no
change in voting procedures could take effect until it was
approved by federal authorities in Washington, D. C.—
either the Attorney General or a court of three judges. Id.,
at 439. A jurisdiction could obtain such “preclearance”
only by proving that the change had neither “the purpose
[nor] the effect of denying or abridging the right to vote on
account of race or color.” Ibid.Sections 4 and 5 were intended to be temporary; they
were set to expire after five years. See §4(a), id., at 438;
Northwest Austin, supra, at 199. In South Carolina v.
Katzenbach, we upheld the 1965 Act against constitutional
challenge, explaining that it was justified to address “vot-
ing discrimination where it persists on a pervasive scale.”
383 U. S., at 308.
In 1970, Congress reauthorized the Act for another five
years, and extended the coverage formula in §4(b) to juris-
dictions that had a voting test and less than 50 percent
voter registration or turnout as of 1968. Voting Rights Act
Amendments of 1970, §§3–4, 84 Stat. 315. That swept in
several counties in California, New Hampshire, and New
York. See 28 CFR pt. 51, App. Congress also extended
the ban in §4(a) on tests and devices nationwide. §6, 84
Stat. 315.
In 1975, Congress reauthorized the Act for seven more
years, and extended its coverage to jurisdictions that had
a voting test and less than 50 percent voter registration or
Cite as: 570 U. S. ____ (2013) 5
Opinion of the Court
turnout as of 1972. Voting Rights Act Amendments of
1975, §§101, 202, 89 Stat. 400, 401. Congress also amend-
ed the definition of “test or device” to include the practice
of providing English-only voting materials in places where
over five percent of voting-age citizens spoke a single
language other than English. §203, id., at 401–402. As a
result of these amendments, the States of Alaska, Arizona,
and Texas, as well as several counties in California, Flor-
ida, Michigan, New York, North Carolina, and South Da-
kota, became covered jurisdictions. See 28 CFR pt. 51, App.
Congress correspondingly amended sections 2 and 5 to
forbid voting discrimination on the basis of membership in
a language minority group, in addition to discrimination
on the basis of race or color. §§203, 206, 89 Stat. 401, 402.
Finally, Congress made the nationwide ban on tests and
devices permanent. §102, id., at 400.
In 1982, Congress reauthorized the Act for 25 years, but
did not alter its coverage formula. See Voting Rights Act
Amendments, 96 Stat. 131. Congress did, however, amend
the bailout provisions, allowing political subdivisions of
covered jurisdictions to bail out. Among other prerequi-
sites for bailout, jurisdictions and their subdivisions must
not have used a forbidden test or device, failed to receive
preclearance, or lost a §2 suit, in the ten years prior to
seeking bailout. §2, id., at 131–133.
We upheld each of these reauthorizations against con-
stitutional challenge. See Georgia v. United States, 411
U. S. 526 (1973); City of Rome v. United States, 446 U. S.
156 (1980); Lopez v. Monterey County, 525 U. S. 266(1999).
In 2006, Congress again reauthorized the Voting Rights
Act for 25 years, again without change to its coverage
formula. Fannie Lou Hamer, Rosa Parks, and Coretta
Scott King Voting Rights Act Reauthorization and Amend-
ments Act, 120 Stat. 577. Congress also amended §5 to
prohibit more conduct than before. §5, id., at 580–
6 SHELBY COUNTY v. HOLDER
Opinion of the Court
581; see Reno v. Bossier Parish School Bd., 528 U. S. 320,
341 (2000) (Bossier II); Georgia v. Ashcroft, 539 U. S. 461,
479 (2003). Section 5 now forbids voting changes with
“any discriminatory purpose” as well as voting changes
that diminish the ability of citizens, on account of race,
color, or language minority status, “to elect their preferred
candidates of choice.” 42 U. S. C. §§1973c(b)–(d).
Shortly after this reauthorization, a Texas utility district
brought suit, seeking to bail out from the Act’s cover-
age and, in the alternative, challenging the Act’s constitu-
tionality. See Northwest Austin, 557 U. S., at 200–201. A
three-judge District Court explained that only a State or
political subdivision was eligible to seek bailout under the
statute, and concluded that the utility district was not a
political subdivision, a term that encompassed only “coun-
ties, parishes, and voter-registering subunits.” Northwest
Austin Municipal Util. Dist. No. One v. Mukasey, 573
F. Supp. 2d 221, 232 (DC 2008). The District Court also
rejected the constitutional challenge. Id., at 283.
We reversed. We explained that “ ‘normally the Court
will not decide a constitutional question if there is some
other ground upon which to dispose of the case.’ ” North-
west Austin, supra, at 205 (quoting Escambia County v.
McMillan, 466 U. S. 48, 51 (1984) (per curiam)). Conclud-
ing that “underlying constitutional concerns,” among other
things, “compel[led] a broader reading of the bailout provi-
sion,” we construed the statute to allow the utility district
to seek bailout. Northwest Austin, 557 U. S., at 207. In
doing so we expressed serious doubts about the Act’s con-
tinued constitutionality.
We explained that §5 “imposes substantial federalism
costs” and “differentiates between the States, despite our his-
toric tradition that all the States enjoy equal sovereignty.”
Id., at 202, 203 (internal quotation marks omitted).
We also noted that “[t]hings have changed in the South.
Voter turnout and registration rates now approach parity.
Cite as: 570 U. S. ____ (2013) 7
Opinion of the Court
Blatantly discriminatory evasions of federal decrees are
rare. And minority candidates hold office at unprece-
dented levels.” Id., at 202. Finally, we questioned whether
the problems that §5 meant to address were still “concen-
trated in the jurisdictions singled out for preclearance.”
Id., at 203.
Eight Members of the Court subscribed to these views,
and the remaining Member would have held the Act un-
constitutional. Ultimately, however, the Court’s construc-
tion of the bailout provision left the constitutional issues
for another day.
B
Shelby County is located in Alabama, a covered jurisdic-
tion. It has not sought bailout, as the Attorney General
has recently objected to voting changes proposed from
within the county. See App. 87a–92a. Instead, in 2010,
the county sued the Attorney General in Federal District
Court in Washington, D. C., seeking a declaratory judg-
ment that sections 4(b) and 5 of the Voting Rights Act are
facially unconstitutional, as well as a permanent injunc-
tion against their enforcement. The District Court ruled
against the county and upheld the Act. 811 F. Supp. 2d
424, 508 (2011). The court found that the evidence before
Congress in 2006 was sufficient to justify reauthorizing §5
and continuing the §4(b) coverage formula.
The Court of Appeals for the D. C. Circuit affirmed. In
assessing §5, the D. C. Circuit considered six primary
categories of evidence: Attorney General objections to
voting changes, Attorney General requests for more in-
formation regarding voting changes, successful §2 suits in
covered jurisdictions, the dispatching of federal observers
to monitor elections in covered jurisdictions, §5 preclear-
ance suits involving covered jurisdictions, and the deter-
rent effect of §5. See 679 F. 3d 848, 862–863 (2012). After
extensive analysis of the record, the court accepted Con-
8 SHELBY COUNTY v. HOLDER
Opinion of the Court
gress’s conclusion that §2 litigation remained inadequate
in the covered jurisdictions to protect the rights of minori-
ty voters, and that §5 was therefore still necessary. Id.,
at 873.
Turning to §4, the D. C. Circuit noted that the evidence
for singling out the covered jurisdictions was “less robust”
and that the issue presented “a close question.” Id., at
879. But the court looked to data comparing the number
of successful §2 suits in the different parts of the country.
Coupling that evidence with the deterrent effect of §5, the
court concluded that the statute continued “to single out
the jurisdictions in which discrimination is concentrated,”
and thus held that the coverage formula passed constitu-
tional muster. Id., at 883.
Judge Williams dissented. He found “no positive cor-
relation between inclusion in §4(b)’s coverage formula and
low black registration or turnout.” Id., at 891. Rather,
to the extent there was any correlation, it actually went
the other way: “condemnation under §4(b) is a marker of
higher black registration and turnout.” Ibid. (emphasis
added). Judge Williams also found that “[c]overed juris-
dictions have far more black officeholders as a proportion
of the black population than do uncovered ones.” Id., at
892. As to the evidence of successful §2 suits, Judge Wil-
liams disaggregated the reported cases by State, and
concluded that “[t]he five worst uncovered jurisdictions . . .
have worse records than eight of the covered jurisdic-
tions.” Id., at 897. He also noted that two covered juris-
dictions—Arizona and Alaska—had not had any successful
reported §2 suit brought against them during the entire 24
years covered by the data. Ibid. Judge Williams would
have held the coverage formula of §4(b) “irrational” and
unconstitutional. Id., at 885.
We granted certiorari. 568 U. S. ___ (2012).
Cite as: 570 U. S. ____ (2013) 9
Opinion of the Court
II
In Northwest Austin, we stated that “the Act imposes
current burdens and must be justified by current needs.”
557 U. S., at 203. And we concluded that “a departure
from the fundamental principle of equal sovereignty re-
quires a showing that a statute’s disparate geographic
coverage is sufficiently related to the problem that it
targets.” Ibid. These basic principles guide our review of
the question before us.1
A
The Constitution and laws of the United States are “the
supreme Law of the Land.” U. S. Const., Art. VI, cl. 2.
State legislation may not contravene federal law. The
Federal Government does not, however, have a general
right to review and veto state enactments before they go
into effect. A proposal to grant such authority to “nega-
tive” state laws was considered at the Constitutional
Convention, but rejected in favor of allowing state laws to
take effect, subject to later challenge under the Supremacy
Clause. See 1 Records of the Federal Convention of 1787,
pp. 21, 164–168 (M. Farrand ed. 1911); 2 id., at 27–29,
390–392.
Outside the strictures of the Supremacy Clause, States
retain broad autonomy in structuring their governments
and pursuing legislative objectives. Indeed, the Constitu-
tion provides that all powers not specifically granted to the
Federal Government are reserved to the States or citizens.
Amdt. 10. This “allocation of powers in our federal system
preserves the integrity, dignity, and residual sovereignty
of the States.” Bond v. United States, 564 U. S. ___, ___
——————
1 Both the Fourteenth and Fifteenth Amendments were at issue in
Northwest Austin, see Juris. Statement i, and Brief for Federal Appel-
lee 29–30, in Northwest Austin Municipal Util. Dist. No. One v. Holder,
O. T. 2008, No. 08–322, and accordingly Northwest Austin guides our
review under both Amendments in this case.
10 SHELBY COUNTY v. HOLDER
Opinion of the Court
(2011) (slip op., at 9). But the federal balance “is not just
an end in itself: Rather, federalism secures to citizens the
liberties that derive from the diffusion of sovereign power.”
Ibid. (internal quotation marks omitted).
More specifically, “ ‘the Framers of the Constitution
intended the States to keep for themselves, as provided in
the Tenth Amendment, the power to regulate elections.’ ”
Gregory v. Ashcroft, 501 U. S. 452, 461–462 (1991) (quot-
ing Sugarman v. Dougall, 413 U. S. 634, 647 (1973); some
internal quotation marks omitted). Of course, the Federal
Government retains significant control over federal elec-
tions. For instance, the Constitution authorizes Congress
to establish the time and manner for electing Senators and
Representatives. Art. I, §4, cl. 1; see also Arizona v. Inter
Tribal Council of Ariz., Inc., ante, at 4–6. But States have
“broad powers to determine the conditions under which
the right of suffrage may be exercised.” Carrington v.
Rash, 380 U. S. 89, 91 (1965) (internal quotation marks
omitted); see also Arizona, ante, at 13–15. And “[e]ach
State has the power to prescribe the qualifications of its
officers and the manner in which they shall be chosen.”
Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 161 (1892).
Drawing lines for congressional districts is likewise “pri-
marily the duty and responsibility of the State.” Perry v.
Perez, 565 U. S. ___, ___ (2012) (per curiam) (slip op., at 3)
(internal quotation marks omitted).
Not only do States retain sovereignty under the Consti-
tution, there is also a “fundamental principle of equal
sovereignty” among the States. Northwest Austin, supra,at 203 (citing United States v. Louisiana, 363 U. S. 1, 16
(1960); Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845);
and Texas v. White, 7 Wall. 700, 725–726 (1869); emphasis
added). Over a hundred years ago, this Court explained
that our Nation “was and is a union of States, equal in
power, dignity and authority.” Coyle v. Smith, 221 U. S.
559, 567 (1911). Indeed, “the constitutional equality of the
Cite as: 570 U. S. ____ (2013) 11
Opinion of the Court
States is essential to the harmonious operation of the
scheme upon which the Republic was organized.” Id., at
580. Coyle concerned the admission of new States, and
Katzenbach rejected the notion that the principle operated
as a bar on differential treatment outside that context.
383 U. S., at 328–329. At the same time, as we made clear
in Northwest Austin, the fundamental principle of equal
sovereignty remains highly pertinent in assessing subse-
quent disparate treatment of States. 557 U. S., at 203.
The Voting Rights Act sharply departs from these basic
principles. It suspends “all changes to state election law—
however innocuous—until they have been precleared
by federal authorities in Washington, D. C.” Id., at 202.
States must beseech the Federal Government for permis-
sion to implement laws that they would otherwise have
the right to enact and execute on their own, subject of
course to any injunction in a §2 action. The Attorney
General has 60 days to object to a preclearance request,
longer if he requests more information. See 28 CFR
§§51.9, 51.37. If a State seeks preclearance from a three-
judge court, the process can take years.
And despite the tradition of equal sovereignty, the Act
applies to only nine States (and several additional coun-
ties). While one State waits months or years and expends
funds to implement a validly enacted law, its neighbor
can typically put the same law into effect immediately,
through the normal legislative process. Even if a noncov-
ered jurisdiction is sued, there are important differences
between those proceedings and preclearance proceedings;
the preclearance proceeding “not only switches the burden
of proof to the supplicant jurisdiction, but also applies
substantive standards quite different from those govern-
ing the rest of the nation.” 679 F. 3d, at 884 (Williams, J.,
dissenting) (case below).
All this explains why, when we first upheld the Act in
1966, we described it as “stringent” and “potent.” Katzen-
12 SHELBY COUNTY v. HOLDER
Opinion of the Court
bach, 383 U. S., at 308, 315, 337. We recognized that it
“may have been an uncommon exercise of congressional
power,” but concluded that “legislative measures not oth-
erwise appropriate” could be justified by “exceptional con-
ditions.” Id., at 334. We have since noted that the Act
“authorizes federal intrusion into sensitive areas of state
and local policymaking,” Lopez, 525 U. S., at 282, and
represents an “extraordinary departure from the tradi-
tional course of relations between the States and the
Federal Government,” Presley v. Etowah County Comm’n,
502 U. S. 491, 500–501 (1992). As we reiterated in
Northwest Austin, the Act constitutes “extraordinary
legislation otherwise unfamiliar to our federal system.”
557 U. S., at 211.
B
In 1966, we found these departures from the basic fea-
tures of our system of government justified. The “blight of
racial discrimination in voting” had “infected the electoral
process in parts of our country for nearly a century.”
Katzenbach, 383 U. S., at 308. Several States had enacted
a variety of requirements and tests “specifically designed
to prevent” African-Americans from voting. Id., at 310.
Case-by-case litigation had proved inadequate to prevent
such racial discrimination in voting, in part because
States “merely switched to discriminatory devices not
covered by the federal decrees,” “enacted difficult new
tests,” or simply “defied and evaded court orders.” Id., at
314. Shortly before enactment of the Voting Rights Act,
only 19.4 percent of African-Americans of voting age were
registered to vote in Alabama, only 31.8 percent in Louisi-
ana, and only 6.4 percent in Mississippi. Id., at 313.
Those figures were roughly 50 percentage points or more
below the figures for whites. Ibid.In short, we concluded that “[u]nder the compulsion of
these unique circumstances, Congress responded in a
Cite as: 570 U. S. ____ (2013) 13
Opinion of the Court
permissibly decisive manner.” Id., at 334, 335. We also
noted then and have emphasized since that this extra-
ordinary legislation was intended to be temporary, set to
expire after five years. Id., at 333; Northwest Austin,
supra, at 199.
At the time, the coverage formula—the means of linking
the exercise of the unprecedented authority with the
problem that warranted it—made sense. We found that
“Congress chose to limit its attention to the geographic
areas where immediate action seemed necessary.” Kat-
zenbach, 383 U. S., at 328. The areas where Congress
found “evidence of actual voting discrimination” shared
two characteristics: “the use of tests and devices for voter
registration, and a voting rate in the 1964 presidential
election at least 12 points below the national average.”
Id., at 330. We explained that “[t]ests and devices are
relevant to voting discrimination because of their long
history as a tool for perpetrating the evil; a low voting rate
is pertinent for the obvious reason that widespread disen-
franchisement must inevitably affect the number of actual
voters.” Ibid. We therefore concluded that “the coverage
formula [was] rational in both practice and theory.” Ibid.It accurately reflected those jurisdictions uniquely charac-
terized by voting discrimination “on a pervasive scale,”
linking coverage to the devices used to effectuate discrimi-
nation and to the resulting disenfranchisement. Id., at
308. The formula ensured that the “stringent remedies
[were] aimed at areas where voting discrimination ha[d]
been most flagrant.” Id., at 315.
C
Nearly 50 years later, things have changed dramati-
cally. Shelby County contends that the preclearance re-
quirement, even without regard to its disparate coverage,
is now unconstitutional. Its arguments have a good deal
of force. In the covered jurisdictions, “[v]oter turnout and
14 SHELBY COUNTY v. HOLDER
Opinion of the Court
registration rates now approach parity. Blatantly discrim-
inatory evasions of federal decrees are rare. And minority
candidates hold office at unprecedented levels.” Northwest
Austin, 557 U. S., at 202. The tests and devices that
blocked access to the ballot have been forbidden nation-
wide for over 40 years. See §6, 84 Stat. 315; §102, 89 Stat.
400.
Those conclusions are not ours alone. Congress said the
same when it reauthorized the Act in 2006, writing that
“[s]ignificant progress has been made in eliminating first
generation barriers experienced by minority voters, in-
cluding increased numbers of registered minority voters,
minority voter turnout, and minority representation in
Congress, State legislatures, and local elected offices.”
§2(b)(1), 120 Stat. 577. The House Report elaborated that
“the number of African-Americans who are registered and
who turn out to cast ballots has increased significantly
over the last 40 years, particularly since 1982,” and noted
that “[i]n some circumstances, minorities register to vote
and cast ballots at levels that surpass those of white vot-
ers.” H. R. Rep. No. 109–478, p. 12 (2006). That Report
also explained that there have been “significant increases
in the number of African-Americans serving in elected
offices”; more specifically, there has been approximately
a 1,000 percent increase since 1965 in the number of
African-American elected officials in the six States origi-
nally covered by the Voting Rights Act. Id., at 18.
The following chart, compiled from the Senate and
House Reports, compares voter registration numbers from
1965 to those from 2004 in the six originally covered
States. These are the numbers that were before Congress
when it reauthorized the Act in 2006:
Cite as: 570 U. S. ____ (2013) 15
Opinion of the Court
1965 2004
White Black Gap White Black Gap
Alabama 69.2 19.3 49.9 73.8 72.9 0.9
Georgia 62.[6] 27.4 35.2 63.5 64.2 -0.7
Louisiana 80.5 31.6 48.9 75.1 71.1 4.0
Mississippi 69.9 6.7 63.2 72.3 76.1 -3.8
South 75.7 37.3 38.4 74.4 71.1 3.3
Carolina
Virginia 61.1 38.3 22.8 68.2 57.4 10.8
See S. Rep. No. 109–295, p. 11 (2006); H. R. Rep. No. 109–
478, at 12. The 2004 figures come from the Census Bu-
reau. Census Bureau data from the most recent election
indicate that African-American voter turnout exceeded
white voter turnout in five of the six States originally
covered by §5, with a gap in the sixth State of less than
one half of one percent. See Dept. of Commerce, Census
Bureau, Reported Voting and Registration, by Sex, Race
and Hispanic Origin, for States (Table 4b). The preclear-
ance statistics are also illuminating. In the first decade
after enactment of §5, the Attorney General objected to
14.2 percent of proposed voting changes. H. R Rep. No.
109–478, at 22. In the last decade before reenactment, the
Attorney General objected to a mere 0.16 percent. S. Rep.
No. 109–295, at 13.
There is no doubt that these improvements are in large
part because of the Voting Rights Act. The Act has proved
immensely successful at redressing racial discrimination
and integrating the voting process. See §2(b)(1), 120 Stat.
577. During the “Freedom Summer” of 1964, in Philadel-
phia, Mississippi, three men were murdered while work-
ing in the area to register African-American voters. See
United States v. Price, 383 U. S. 787, 790 (1966). On
“Bloody Sunday” in 1965, in Selma, Alabama, police beat
16 SHELBY COUNTY v. HOLDER
Opinion of the Court
and used tear gas against hundreds marching in sup-
port of African-American enfranchisement. See Northwest
Austin, supra, at 220, n. 3 (THOMAS, J., concurring in
judgment in part and dissenting in part). Today both of
those towns are governed by African-American mayors.
Problems remain in these States and others, but there is
no denying that, due to the Voting Rights Act, our Nation
has made great strides.
Yet the Act has not eased the restrictions in §5 or nar-
rowed the scope of the coverage formula in §4(b) along the
way. Those extraordinary and unprecedented features
were reauthorized—as if nothing had changed. In fact,
the Act’s unusual remedies have grown even stronger.
When Congress reauthorized the Act in 2006, it did so for
another 25 years on top of the previous 40—a far cry from
the initial five-year period. See 42 U. S. C. §1973b(a)(8).
Congress also expanded the prohibitions in §5. We had
previously interpreted §5 to prohibit only those redistrict-
ing plans that would have the purpose or effect of worsen-
ing the position of minority groups. See Bossier II, 528
U. S., at 324, 335–336. In 2006, Congress amended §5
to prohibit laws that could have favored such groups but
did not do so because of a discriminatory purpose, see 42
U. S. C. §1973c(c), even though we had stated that such
broadening of §5 coverage would “exacerbate the substan-
tial federalism costs that the preclearance procedure
already exacts, perhaps to the extent of raising concerns
about §5’s constitutionality,” Bossier II, supra, at 336
(citation and internal quotation marks omitted). In addi-
tion, Congress expanded §5 to prohibit any voting law
“that has the purpose of or will have the effect of diminish-
ing the ability of any citizens of the United States,” on
account of race, color, or language minority status, “to
elect their preferred candidates of choice.” §1973c(b). In
light of those two amendments, the bar that covered juris-
dictions must clear has been raised even as the conditions
Cite as: 570 U. S. ____ (2013) 17
Opinion of the Court
justifying that requirement have dramatically improved.
We have also previously highlighted the concern that
“the preclearance requirements in one State [might]
be unconstitutional in another.” Northwest Austin, 557
U. S., at 203; see Georgia v. Ashcroft, 539 U. S., at 491(KENNEDY, J., concurring) (“considerations of race that
would doom a redistricting plan under the Fourteenth
Amendment or §2 [of the Voting Rights Act] seem to be
what save it under §5”). Nothing has happened since to
alleviate this troubling concern about the current applica-
tion of §5.
Respondents do not deny that there have been im-
provements on the ground, but argue that much of this
can be attributed to the deterrent effect of §5, which dis-
suades covered jurisdictions from engaging in discrimina-
tion that they would resume should §5 be struck down.
Under this theory, however, §5 would be effectively im-
mune from scrutiny; no matter how “clean” the record
of covered jurisdictions, the argument could always be
made that it was deterrence that accounted for the good
behavior.
The provisions of §5 apply only to those jurisdictions
singled out by §4. We now consider whether that coverage
formula is constitutional in light of current conditions.
III
A
When upholding the constitutionality of the coverage
formula in 1966, we concluded that it was “rational in both
practice and theory.” Katzenbach, 383 U. S., at 330. The
formula looked to cause (discriminatory tests) and ef-
fect (low voter registration and turnout), and tailored the
remedy (preclearance) to those jurisdictions exhibiting
both.
By 2009, however, we concluded that the “coverage
formula raise[d] serious constitutional questions.” North-
18 SHELBY COUNTY v. HOLDER
Opinion of the Court
west Austin, 557 U. S., at 204. As we explained, a stat-
ute’s “current burdens” must be justified by “current
needs,” and any “disparate geographic coverage” must be
“sufficiently related to the problem that it targets.” Id., at
203. The coverage formula met that test in 1965, but no
longer does so.
Coverage today is based on decades-old data and eradi-
cated practices. The formula captures States by reference
to literacy tests and low voter registration and turnout in
the 1960s and early 1970s. But such tests have been
banned nationwide for over 40 years. §6, 84 Stat. 315;
§102, 89 Stat. 400. And voter registration and turnout
numbers in the covered States have risen dramatically in
the years since. H. R. Rep. No. 109–478, at 12. Racial
disparity in those numbers was compelling evidence justi-
fying the preclearance remedy and the coverage formula.
See, e.g., Katzenbach, supra, at 313, 329–330. There is no
longer such a disparity.
In 1965, the States could be divided into two groups:
those with a recent history of voting tests and low voter
registration and turnout, and those without those charac-
teristics. Congress based its coverage formula on that
distinction. Today the Nation is no longer divided along
those lines, yet the Voting Rights Act continues to treat it
as if it were.
B
The Government’s defense of the formula is limited.
First, the Government contends that the formula is “re-
verse-engineered”: Congress identified the jurisdictions to
be covered and then came up with criteria to describe
them. Brief for Federal Respondent 48–49. Under that
reasoning, there need not be any logical relationship be-
tween the criteria in the formula and the reason for
coverage; all that is necessary is that the formula happen
to capture the jurisdictions Congress wanted to single out.
Cite as: 570 U. S. ____ (2013) 19
Opinion of the Court
The Government suggests that Katzenbach sanctioned
such an approach, but the analysis in Katzenbach was
quite different. Katzenbach reasoned that the coverage
formula was rational because the “formula . . . was rele-
vant to the problem”: “Tests and devices are relevant to
voting discrimination because of their long history as a
tool for perpetrating the evil; a low voting rate is pertinent
for the obvious reason that widespread disenfranchise-
ment must inevitably affect the number of actual voters.”
383 U. S., at 329, 330.
Here, by contrast, the Government’s reverse-
engineering argument does not even attempt to demon-
strate the continued relevance of the formula to the problem
it targets. And in the context of a decision as significant
as this one—subjecting a disfavored subset of States
to “extraordinary legislation otherwise unfamiliar to our
federal system,” Northwest Austin, supra, at 211—that
failure to establish even relevance is fatal.
The Government falls back to the argument that be-
cause the formula was relevant in 1965, its continued use
is permissible so long as any discrimination remains in the
States Congress identified back then—regardless of how
that discrimination compares to discrimination in States
unburdened by coverage. Brief for Federal Respondent
49–50. This argument does not look to “current political
conditions,” Northwest Austin, supra, at 203, but instead
relies on a comparison between the States in 1965. That
comparison reflected the different histories of the North
and South. It was in the South that slavery was upheld by
law until uprooted by the Civil War, that the reign of Jim
Crow denied African-Americans the most basic freedoms,
and that state and local governments worked tirelessly to
disenfranchise citizens on the basis of race. The Court
invoked that history—rightly so—in sustaining the dis-
parate coverage of the Voting Rights Act in 1966. See
Katzenbach, supra, at 308 (“The constitutional propriety of
20 SHELBY COUNTY v. HOLDER
Opinion of the Court
the Voting Rights Act of 1965 must be judged with refer-
ence to the historical experience which it reflects.”).
But history did not end in 1965. By the time the Act
was reauthorized in 2006, there had been 40 more years of
it. In assessing the “current need[ ]” for a preclearance
system that treats States differently from one another
today, that history cannot be ignored. During that time,
largely because of the Voting Rights Act, voting tests were
abolished, disparities in voter registration and turnout
due to race were erased, and African-Americans attained
political office in record numbers. And yet the coverage
formula that Congress reauthorized in 2006 ignores these
developments, keeping the focus on decades-old data rel-
evant to decades-old problems, rather than current data
reflecting current needs.
The Fifteenth Amendment commands that the right to
vote shall not be denied or abridged on account of race or
color, and it gives Congress the power to enforce that
command. The Amendment is not designed to punish for
the past; its purpose is to ensure a better future. See Rice
v. Cayetano, 528 U. S. 495, 512 (2000) (“Consistent with
the design of the Constitution, the [Fifteenth] Amendment
is cast in fundamental terms, terms transcending the
particular controversy which was the immediate impetus
for its enactment.”). To serve that purpose, Congress—if it
is to divide the States—must identify those jurisdictions to
be singled out on a basis that makes sense in light of
current conditions. It cannot rely simply on the past. We
made that clear in Northwest Austin, and we make it clear
again today.
C
In defending the coverage formula, the Government, the
intervenors, and the dissent also rely heavily on data from
the record that they claim justify disparate coverage.
Congress compiled thousands of pages of evidence before
Cite as: 570 U. S. ____ (2013) 21
Opinion of the Court
reauthorizing the Voting Rights Act. The court below and
the parties have debated what that record shows—they
have gone back and forth about whether to compare cov-
ered to noncovered jurisdictions as blocks, how to dis-
aggregate the data State by State, how to weigh §2 cases
as evidence of ongoing discrimination, and whether to
consider evidence not before Congress, among other is-
sues. Compare, e.g., 679 F. 3d, at 873–883 (case below),
with id., at 889–902 (Williams, J., dissenting). Regardless
of how to look at the record, however, no one can fairly say
that it shows anything approaching the “pervasive,” “fla-
grant,” “widespread,” and “rampant” discrimination that
faced Congress in 1965, and that clearly distinguished the
covered jurisdictions from the rest of the Nation at that
time. Katzenbach, supra, at 308, 315, 331; Northwest
Austin, 557 U. S., at 201.
But a more fundamental problem remains: Congress did
not use the record it compiled to shape a coverage formula
grounded in current conditions. It instead reenacted a
formula based on 40-year-old facts having no logical rela-
tion to the present day. The dissent relies on “second-
generation barriers,” which are not impediments to the
casting of ballots, but rather electoral arrangements that
affect the weight of minority votes. That does not cure the
problem. Viewing the preclearance requirements as tar-
geting such efforts simply highlights the irrationality of
continued reliance on the §4 coverage formula, which is
based on voting tests and access to the ballot, not vote
dilution. We cannot pretend that we are reviewing an
updated statute, or try our hand at updating the statute
ourselves, based on the new record compiled by Congress.
Contrary to the dissent’s contention, see post, at 23, we are
not ignoring the record; we are simply recognizing that it
played no role in shaping the statutory formula before us
today.
The dissent also turns to the record to argue that, in
22 SHELBY COUNTY v. HOLDER
Opinion of the Court
light of voting discrimination in Shelby County, the county
cannot complain about the provisions that subject it to
preclearance. Post, at 23–30. But that is like saying that
a driver pulled over pursuant to a policy of stopping all
redheads cannot complain about that policy, if it turns out
his license has expired. Shelby County’s claim is that the
coverage formula here is unconstitutional in all its appli-
cations, because of how it selects the jurisdictions sub-
jected to preclearance. The county was selected based on
that formula, and may challenge it in court.
D
The dissent proceeds from a flawed premise. It quotes
the famous sentence from McCulloch v. Maryland, 4
Wheat. 316, 421 (1819), with the following emphasis: “Let
the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which
are plainly adapted to that end, which are not prohibited,
but consist with the letter and spirit of the constitution,
are constitutional.” Post, at 9 (emphasis in dissent). But
this case is about a part of the sentence that the dissent
does not emphasize—the part that asks whether a legisla-
tive means is “consist[ent] with the letter and spirit of the
constitution.” The dissent states that “[i]t cannot tenably
be maintained” that this is an issue with regard to the
Voting Rights Act, post, at 9, but four years ago, in an
opinion joined by two of today’s dissenters, the Court
expressly stated that “[t]he Act’s preclearance require-
ment and its coverage formula raise serious constitutional
questions.” Northwest Austin, supra, at 204. The dissent
does not explain how those “serious constitutional ques-
tions” became untenable in four short years.
The dissent treats the Act as if it were just like any
other piece of legislation, but this Court has made clear
from the beginning that the Voting Rights Act is far from
ordinary. At the risk of repetition, Katzenbach indicated
Cite as: 570 U. S. ____ (2013) 23
Opinion of the Court
that the Act was “uncommon” and “not otherwise appro-
priate,” but was justified by “exceptional” and “unique”
conditions. 383 U. S., at 334, 335. Multiple decisions
since have reaffirmed the Act’s “extraordinary” nature.
See, e.g., Northwest Austin, supra, at 211. Yet the dissent
goes so far as to suggest instead that the preclearance
requirement and disparate treatment of the States should
be upheld into the future “unless there [is] no or almost no
evidence of unconstitutional action by States.” Post, at 33.
In other ways as well, the dissent analyzes the ques-
tion presented as if our decision in Northwest Austin never
happened. For example, the dissent refuses to con-
sider the principle of equal sovereignty, despite Northwest
Austin’s emphasis on its significance. Northwest Austin
also emphasized the “dramatic” progress since 1965, 557
U. S., at 201, but the dissent describes current levels of
discrimination as “flagrant,” “widespread,” and “perva-
sive,” post, at 7, 17 (internal quotation marks omitted).
Despite the fact that Northwest Austin requires an Act’s
“disparate geographic coverage” to be “sufficiently related”
to its targeted problems, 557 U. S., at 203, the dissent
maintains that an Act’s limited coverage actually eases
Congress’s burdens, and suggests that a fortuitous rela-
tionship should suffice. Although Northwest Austin stated
definitively that “current burdens” must be justified by
“current needs,” ibid., the dissent argues that the coverage
formula can be justified by history, and that the required
showing can be weaker on reenactment than when the law
was first passed.
There is no valid reason to insulate the coverage for-
mula from review merely because it was previously enacted
40 years ago. If Congress had started from scratch in
2006, it plainly could not have enacted the present cover-
age formula. It would have been irrational for Congress to
distinguish between States in such a fundamental way
based on 40-year-old data, when today’s statistics tell an
24 SHELBY COUNTY v. HOLDER
Opinion of the Court
entirely different story. And it would have been irrational
to base coverage on the use of voting tests 40 years ago,
when such tests have been illegal since that time. But
that is exactly what Congress has done.
* * *
Striking down an Act of Congress “is the gravest and
most delicate duty that this Court is called on to perform.”
Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J.,
concurring). We do not do so lightly. That is why, in 2009,
we took care to avoid ruling on the constitutionality of
the Voting Rights Act when asked to do so, and instead
resolved the case then before us on statutory grounds. But
in issuing that decision, we expressed our broader con-
cerns about the constitutionality of the Act. Congress
could have updated the coverage formula at that time, but
did not do so. Its failure to act leaves us today with no
choice but to declare §4(b) unconstitutional. The formula
in that section can no longer be used as a basis for subject-
ing jurisdictions to preclearance.
Our decision in no way affects the permanent, nation-
wide ban on racial discrimination in voting found in §2.
We issue no holding on §5 itself, only on the coverage
formula. Congress may draft another formula based on
current conditions. Such a formula is an initial prerequi-
site to a determination that exceptional conditions still
exist justifying such an “extraordinary departure from the
traditional course of relations between the States and the
Federal Government.” Presley, 502 U. S., at 500–501. Our
country has changed, and while any racial discrimination
in voting is too much, Congress must ensure that the
legislation it passes to remedy that problem speaks to
current conditions.
The judgment of the Court of Appeals is reversed.
It is so ordered.
Cite as: 570 U. S. ____ (2013) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED
STATES
_________________
No. 12–96
_________________
SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC
H. HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 25, 2013]
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full but write separately to
explain that I would find §5 of the Voting Rights Act un-
constitutional as well. The Court’s opinion sets forth the
reasons.
“The Voting Rights Act of 1965 employed extraordinary
measures to address an extraordinary problem.” Ante, at
1. In the face of “unremitting and ingenious defiance” of
citizens’ constitutionally protected right to vote, §5 was
necessary to give effect to the Fifteenth Amendment in
particular regions of the country. South Carolina v. Katzen-
bach, 383 U. S. 301, 309 (1966). Though §5’s preclear-
ance requirement represented a “shar[p] depart[ure]” from
“basic principles” of federalism and the equal sovereignty
of the States, ante, at 9, 11, the Court upheld the measure
against early constitutional challenges because it was
necessary at the time to address “voting discrimination
where it persist[ed] on a pervasive scale.” Katzenbach,
supra, at 308.
Today, our Nation has changed. “[T]he conditions that
originally justified [§5] no longer characterize voting in the
covered jurisdictions.” Ante, at 2. As the Court explains:
“ ‘[V]oter turnout and registration rates now approach
parity. Blatantly discriminatory evasions of federal de-
2 SHELBY COUNTY v. HOLDER
THOMAS, J., concurring
crees are rare. And minority candidates hold office at un-
precedented levels.’ ” Ante, at 13–14 (quoting Northwest
Austin Municipal Util. Dist. No. One v. Holder, 557 U. S.
193, 202 (2009)).
In spite of these improvements, however, Congress
increased the already significant burdens of §5. Following
its reenactment in 2006, the Voting Rights Act was
amended to “prohibit more conduct than before.” Ante,
at 5. “Section 5 now forbids voting changes with ‘any dis-
criminatory purpose’ as well as voting changes that dimin-
ish the ability of citizens, on account of race, color, or
language minority status, ‘to elect their preferred candi-
dates of choice.’ ” Ante, at 6. While the pre-2006 version of
the Act went well beyond protection guaranteed under the
Constitution, see Reno v. Bossier Parish School Bd., 520
U. S. 471, 480–482 (1997), it now goes even further.
It is, thus, quite fitting that the Court repeatedly points
out that this legislation is “extraordinary” and “unprece-
dented” and recognizes the significant constitutional
problems created by Congress’ decision to raise “the bar
that covered jurisdictions must clear,” even as “the condi-
tions justifying that requirement have dramatically im-
proved.” Ante, at 16–17. However one aggregates the
data compiled by Congress, it cannot justify the consider-
able burdens created by §5. As the Court aptly notes:
“[N]o one can fairly say that [the record] shows anything
approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and
‘rampant’ discrimination that faced Congress in 1965, and
that clearly distinguished the covered jurisdictions from
the rest of the Nation at that time.” Ante, at 21. Indeed,
circumstances in the covered jurisdictions can no longer be
characterized as “exceptional” or “unique.” “The extensive
pattern of discrimination that led the Court to previously
uphold §5 as enforcing the Fifteenth Amendment no longer
exists.” Northwest Austin, supra, at 226 (THOMAS, J.,
concurring in judgment in part and dissenting in part).
Cite as: 570 U. S. ____ (2013) 3
THOMAS, J., concurring
Section 5 is, thus, unconstitutional.
While the Court claims to “issue no holding on §5 itself,”
ante, at 24, its own opinion compellingly demonstrates
that Congress has failed to justify “ ‘current burdens’ ” with
a record demonstrating “ ‘current needs.’ ” See ante, at 9
(quoting Northwest Austin, supra, at 203). By leaving the
inevitable conclusion unstated, the Court needlessly pro-
longs the demise of that provision. For the reasons stated
in the Court’s opinion, I would find §5 unconstitutional.
Cite as: 570 U. S. ____ (2013) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–96
_________________
SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC
H. HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 25, 2013]
JUSTICE GINSBURG, with whom JUSTICE BREYER,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
In the Court’s view, the very success of §5 of the Voting
Rights Act demands its dormancy. Congress was of
another mind. Recognizing that large progress has been
made, Congress determined, based on a voluminous rec­
ord, that the scourge of discrimination was not yet extir­
pated. The question this case presents is who decides
whether, as currently operative, §5 remains justifiable,1
this Court, or a Congress charged with the obligation to
enforce the post-Civil War Amendments “by appropriate
legislation.” With overwhelming support in both Houses,
Congress concluded that, for two prime reasons, §5 should
continue in force, unabated. First, continuance would
facilitate completion of the impressive gains thus far
made; and second, continuance would guard against back­
sliding. Those assessments were well within Congress’
province to make and should elicit this Court’s unstinting
approbation.
I
“[V]oting discrimination still exists; no one doubts that.”
——————
1 The Court purports to declare unconstitutional only the coverage
formula set out in §4(b). See ante, at 24. But without that formula, §5
is immobilized.
2 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
Ante, at 2. But the Court today terminates the remedy
that proved to be best suited to block that discrimination.
The Voting Rights Act of 1965 (VRA) has worked to com­
bat voting discrimination where other remedies had been
tried and failed. Particularly effective is the VRA’s re­
quirement of federal preclearance for all changes to voting
laws in the regions of the country with the most aggravated
records of rank discrimination against minority voting
rights.
A century after the Fourteenth and Fifteenth Amend­
ments guaranteed citizens the right to vote free of dis­
crimination on the basis of race, the “blight of racial
discrimination in voting” continued to “infec[t] the
electoral process in parts of our country.” South Carolina v.
Katzenbach, 383 U. S. 301, 308 (1966). Early attempts to
cope with this vile infection resembled battling the Hydra.
Whenever one form of voting discrimination was identified
and prohibited, others sprang up in its place. This Court
repeatedly encountered the remarkable “variety and
persistence” of laws disenfranchising minority citizens.
Id., at 311. To take just one example, the Court, in 1927,
held unconstitutional a Texas law barring black voters
from participating in primary elections, Nixon v. Herndon,
273 U. S. 536, 541; in 1944, the Court struck down a
“reenacted” and slightly altered version of the same law,
Smith v. Allwright, 321 U. S. 649, 658; and in 1953, the
Court once again confronted an attempt by Texas to “cir­
cumven[t]” the Fifteenth Amendment by adopting yet
another variant of the all-white primary, Terry v. Adams,
345 U. S. 461, 469.
During this era, the Court recognized that discrimina­
tion against minority voters was a quintessentially politi­
cal problem requiring a political solution. As Justice
Holmes explained: If “the great mass of the white popula­
tion intends to keep the blacks from voting,” “relief from
[that] great political wrong, if done, as alleged, by the
Cite as: 570 U. S. ____ (2013) 3
GINSBURG, J., dissenting
people of a State and the State itself, must be given by
them or by the legislative and political department of
the government of the United States.” Giles v. Harris, 189
U. S. 475, 488 (1903).
Congress learned from experience that laws targeting
particular electoral practices or enabling case-by-case
litigation were inadequate to the task. In the Civil Rights
Acts of 1957, 1960, and 1964, Congress authorized and
then expanded the power of “the Attorney General to seek
injunctions against public and private interference with
the right to vote on racial grounds.” Katzenbach, 383
U. S., at 313. But circumstances reduced the ameliorative
potential of these legislative Acts:
“Voting suits are unusually onerous to prepare, some­
times requiring as many as 6,000 man-hours spent
combing through registration records in preparation
for trial. Litigation has been exceedingly slow, in part
because of the ample opportunities for delay afforded
voting officials and others involved in the proceed­
ings. Even when favorable decisions have finally been
obtained, some of the States affected have merely
switched to discriminatory devices not covered by the
federal decrees or have enacted difficult new tests de­
signed to prolong the existing disparity between white
and Negro registration. Alternatively, certain local of­
ficials have defied and evaded court orders or have
simply closed their registration offices to freeze the
voting rolls.” Id., at 314 (footnote omitted).
Patently, a new approach was needed.
Answering that need, the Voting Rights Act became one
of the most consequential, efficacious, and amply justified
exercises of federal legislative power in our Nation’s his­
tory. Requiring federal preclearance of changes in voting
laws in the covered jurisdictions—those States and locali­
ties where opposition to the Constitution’s commands were
4 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
most virulent—the VRA provided a fit solution for minor­
ity voters as well as for States. Under the preclearance
regime established by §5 of the VRA, covered jurisdictions
must submit proposed changes in voting laws or proce­
dures to the Department of Justice (DOJ), which has 60
days to respond to the changes. 79 Stat. 439, codified at
42 U. S. C. §1973c(a). A change will be approved unless
DOJ finds it has “the purpose [or] . . . the effect of denying
or abridging the right to vote on account of race or color.”
Ibid. In the alternative, the covered jurisdiction may seek
approval by a three-judge District Court in the District of
Columbia.
After a century’s failure to fulfill the promise of the
Fourteenth and Fifteenth Amendments, passage of the
VRA finally led to signal improvement on this front. “The
Justice Department estimated that in the five years after
[the VRA’s] passage, almost as many blacks registered [to
vote] in Alabama, Mississippi, Georgia, Louisiana, North
Carolina, and South Carolina as in the entire century
before 1965.” Davidson, The Voting Rights Act: A Brief
History, in Controversies in Minority Voting 7, 21 (B.
Grofman & C. Davidson eds. 1992). And in assessing the
overall effects of the VRA in 2006, Congress found that
“[s]ignificant progress has been made in eliminating first
generation barriers experienced by minority voters, in­
cluding increased numbers of registered minority voters,
minority voter turnout, and minority representation in
Congress, State legislatures, and local elected offices. This
progress is the direct result of the Voting Rights Act of
1965.” Fannie Lou Hamer, Rosa Parks, and Coretta Scott
King Voting Rights Act Reauthorization and Amendments
Act of 2006 (hereinafter 2006 Reauthorization), §2(b)(1),
120 Stat. 577. On that matter of cause and effects there
can be no genuine doubt.
Although the VRA wrought dramatic changes in the
realization of minority voting rights, the Act, to date,
Cite as: 570 U. S. ____ (2013) 5
GINSBURG, J., dissenting
surely has not eliminated all vestiges of discrimination
against the exercise of the franchise by minority citizens.
Jurisdictions covered by the preclearance requirement
continued to submit, in large numbers, proposed changes
to voting laws that the Attorney General declined to ap­
prove, auguring that barriers to minority voting would
quickly resurface were the preclearance remedy elimi­
nated. City of Rome v. United States, 446 U. S. 156, 181
(1980). Congress also found that as “registration and
voting of minority citizens increas[ed], other measures
may be resorted to which would dilute increasing minority
voting strength.” Ibid. (quoting H. R. Rep. No. 94–196,
p. 10 (1975)). See also Shaw v. Reno, 509 U. S. 630,
640 (1993) (“[I]t soon became apparent that guaranteeing
equal access to the polls would not suffice to root out other
racially discriminatory voting practices” such as voting
dilution). Efforts to reduce the impact of minority votes,
in contrast to direct attempts to block access to the bal­
lot, are aptly described as “second-generation barriers” to
minority voting.
Second-generation barriers come in various forms. One
of the blockages is racial gerrymandering, the redrawing
of legislative districts in an “effort to segregate the races
for purposes of voting.” Id., at 642. Another is adoption of
a system of at-large voting in lieu of district-by-district
voting in a city with a sizable black minority. By switch­
ing to at-large voting, the overall majority could control
the election of each city council member, effectively elimi­
nating the potency of the minority’s votes. Grofman &
Davidson, The Effect of Municipal Election Structure on
Black Representation in Eight Southern States, in
Quiet Revolution in the South 301, 319 (C. Davidson
& B. Grofman eds. 1994) (hereinafter Quiet Revolution).
A similar effect could be achieved if the city engaged
in discriminatory annexation by incorporating majority­
white areas into city limits, thereby decreasing the effect
6 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
of VRA-occasioned increases in black voting. Whatever
the device employed, this Court has long recognized that
vote dilution, when adopted with a discriminatory pur­
pose, cuts down the right to vote as certainly as denial of
access to the ballot. Shaw, 509 U. S., at 640–641; Allen v.
State Bd. of Elections, 393 U. S. 544, 569 (1969); Reynolds
v. Sims, 377 U. S. 533, 555 (1964). See also H. R. Rep. No.
109–478, p. 6 (2006) (although “[d]iscrimination today is
more subtle than the visible methods used in 1965,” “the
effect and results are the same, namely a diminishing of
the minority community’s ability to fully participate in the
electoral process and to elect their preferred candidates”).
In response to evidence of these substituted barriers,
Congress reauthorized the VRA for five years in 1970, for
seven years in 1975, and for 25 years in 1982. Ante, at 4–5.
Each time, this Court upheld the reauthorization as a
valid exercise of congressional power. Ante, at 5. As the
1982 reauthorization approached its 2007 expiration date,
Congress again considered whether the VRA’s preclear­
ance mechanism remained an appropriate response to the
problem of voting discrimination in covered jurisdictions.
Congress did not take this task lightly. Quite the oppo­
site. The 109th Congress that took responsibility for the
renewal started early and conscientiously. In October
2005, the House began extensive hearings, which contin­
ued into November and resumed in March 2006. S. Rep.
No. 109–295, p. 2 (2006). In April 2006, the Senate fol­
lowed suit, with hearings of its own. Ibid. In May 2006,
the bills that became the VRA’s reauthorization were
introduced in both Houses. Ibid. The House held further
hearings of considerable length, as did the Senate, which
continued to hold hearings into June and July. H. R. Rep.
109–478, at 5; S. Rep. 109–295, at 3–4. In mid-July, the
House considered and rejected four amendments, then
passed the reauthorization by a vote of 390 yeas to 33
nays. 152 Cong. Rec. H5207 (July 13, 2006); Persily, The
Cite as: 570 U. S. ____ (2013) 7
GINSBURG, J., dissenting
Promise and Pitfalls of the New Voting Rights Act, 117
Yale L. J. 174, 182–183 (2007) (hereinafter Persily). The
bill was read and debated in the Senate, where it passed
by a vote of 98 to 0. 152 Cong. Rec. S8012 (July 20, 2006).
President Bush signed it a week later, on July 27, 2006,
recognizing the need for “further work . . . in the fight
against injustice,” and calling the reauthorization “an
example of our continued commitment to a united America
where every person is valued and treated with dignity and
respect.” 152 Cong. Rec. S8781 (Aug. 3, 2006).
In the long course of the legislative process, Congress
“amassed a sizable record.” Northwest Austin Municipal
Util. Dist. No. One v. Holder, 557 U. S. 193, 205 (2009).
See also 679 F. 3d 848, 865–873 (CADC 2012) (describing
the “extensive record” supporting Congress’ determina­
tion that “serious and widespread intentional discrimination
persisted in covered jurisdictions”). The House and Senate
Judiciary Committees held 21 hearings, heard from scores
of witnesses, received a number of investigative reports
and other written documentation of continuing discrimina­
tion in covered jurisdictions. In all, the legislative record
Congress compiled filled more than 15,000 pages.
H. R. Rep. 109–478, at 5, 11–12; S. Rep. 109–295, at 2–4,
15. The compilation presents countless “examples of fla­
grant racial discrimination” since the last reauthoriza­
tion; Congress also brought to light systematic evidence
that “intentional racial discrimination in voting remains
so serious and widespread in covered jurisdictions that
section 5 preclearance is still needed.” 679 F. 3d, at 866.
After considering the full legislative record, Congress
made the following findings: The VRA has directly caused
significant progress in eliminating first-generation barri­
ers to ballot access, leading to a marked increase in minor­
ity voter registration and turnout and the number of
minority elected officials. 2006 Reauthorization §2(b)(1).
But despite this progress, “second generation barriers
8 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
constructed to prevent minority voters from fully partici­
pating in the electoral process” continued to exist, as well
as racially polarized voting in the covered jurisdictions,
which increased the political vulnerability of racial and
language minorities in those jurisdictions. §§2(b)(2)–(3),
120 Stat. 577. Extensive “[e]vidence of continued discrim­
ination,” Congress concluded, “clearly show[ed] the con­
tinued need for Federal oversight” in covered jurisdictions.
§§2(b)(4)–(5), id., at 577–578. The overall record demon­
strated to the federal lawmakers that, “without the con­
tinuation of the Voting Rights Act of 1965 protections,
racial and language minority citizens will be deprived of
the opportunity to exercise their right to vote, or will have
their votes diluted, undermining the significant gains
made by minorities in the last 40 years.” §2(b)(9), id., at
578.
Based on these findings, Congress reauthorized pre­
clearance for another 25 years, while also undertaking to
reconsider the extension after 15 years to ensure that the
provision was still necessary and effective. 42 U. S. C.
§1973b(a)(7), (8) (2006 ed., Supp. V). The question before
the Court is whether Congress had the authority under
the Constitution to act as it did.
II
In answering this question, the Court does not write on
a clean slate. It is well established that Congress’ judg­
ment regarding exercise of its power to enforce the Four­
teenth and Fifteenth Amendments warrants substantial
deference. The VRA addresses the combination of race
discrimination and the right to vote, which is “preserva­
tive of all rights.” Yick Wo v. Hopkins, 118 U. S. 356, 370
(1886). When confronting the most constitutionally invid­
ious form of discrimination, and the most fundamental
right in our democratic system, Congress’ power to act is
at its height.
Cite as: 570 U. S. ____ (2013) 9
GINSBURG, J., dissenting
The basis for this deference is firmly rooted in both
constitutional text and precedent. The Fifteenth Amend­
ment, which targets precisely and only racial discrimina­
tion in voting rights, states that, in this domain, “Congress
shall have power to enforce this article by appropriate
legislation.”2 In choosing this language, the Amendment’s
framers invoked Chief Justice Marshall’s formulation of
the scope of Congress’ powers under the Necessary and
Proper Clause:
“Let the end be legitimate, let it be within the scope of
the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the
constitution, are constitutional.” McCulloch v. Mary-
land, 4 Wheat. 316, 421 (1819) (emphasis added).
It cannot tenably be maintained that the VRA, an Act of
Congress adopted to shield the right to vote from racial
discrimination, is inconsistent with the letter or spirit of
the Fifteenth Amendment, or any provision of the Consti­
tution read in light of the Civil War Amendments. No­
where in today’s opinion, or in Northwest Austin,3 is there
——————
2 The Constitution uses the words “right to vote” in five separate
places: the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and
Twenty-Sixth Amendments. Each of these Amendments contains the
same broad empowerment of Congress to enact “appropriate legisla­
tion” to enforce the protected right. The implication is unmistakable:
Under our constitutional structure, Congress holds the lead rein in
making the right to vote equally real for all U. S. citizens. These
Amendments are in line with the special role assigned to Congress in
protecting the integrity of the democratic process in federal elections.
U. S. Const., Art. I, §4 (“[T]he Congress may at any time by Law make
or alter” regulations concerning the “Times, Places and Manner of
holding Elections for Senators and Representatives.”); Arizona v. Inter
Tribal Council of Ariz., Inc., ante, at 5–6.
3 Acknowledging the existence of “serious constitutional questions,”
see ante, at 22 (internal quotation marks omitted), does not suggest
how those questions should be answered.
10 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
clear recognition of the transformative effect the Fifteenth
Amendment aimed to achieve. Notably, “the Founders’
first successful amendment told Congress that it could
‘make no law’ over a certain domain”; in contrast, the Civil
War Amendments used “language [that] authorized trans­
formative new federal statutes to uproot all vestiges of
unfreedom and inequality” and provided “sweeping en­
forcement powers . . . to enact ‘appropriate’ legislation
targeting state abuses.” A. Amar, America’s Constitution:
A Biography 361, 363, 399 (2005). See also McConnell,
Institutions and Interpretation: A Critique of City of
Boerne v. Flores, 111 Harv. L. Rev. 153, 182 (1997)
(quoting Civil War-era framer that “the remedy for the
violation of the fourteenth and fifteenth amendments
was expressly not left to the courts. The remedy was
legislative.”).
The stated purpose of the Civil War Amendments was to
arm Congress with the power and authority to protect all
persons within the Nation from violations of their rights
by the States. In exercising that power, then, Congress
may use “all means which are appropriate, which are
plainly adapted” to the constitutional ends declared by
these Amendments. McCulloch, 4 Wheat., at 421. So
when Congress acts to enforce the right to vote free from
racial discrimination, we ask not whether Congress has
chosen the means most wise, but whether Congress has
rationally selected means appropriate to a legitimate end.
“It is not for us to review the congressional resolution of
[the need for its chosen remedy]. It is enough that we be
able to perceive a basis upon which the Congress might
resolve the conflict as it did.” Katzenbach v. Morgan, 384
U. S. 641, 653 (1966).
Until today, in considering the constitutionality of the
VRA, the Court has accorded Congress the full measure of
respect its judgments in this domain should garner. South
Carolina v. Katzenbach supplies the standard of review:
Cite as: 570 U. S. ____ (2013) 11
GINSBURG, J., dissenting
“As against the reserved powers of the States, Congress
may use any rational means to effectuate the constitu­
tional prohibition of racial discrimination in voting.” 383
U. S., at 324. Faced with subsequent reauthorizations of
the VRA, the Court has reaffirmed this standard. E.g.,
City of Rome, 446 U. S., at 178. Today’s Court does not
purport to alter settled precedent establishing that the
dispositive question is whether Congress has employed
“rational means.”
For three reasons, legislation reauthorizing an existing
statute is especially likely to satisfy the minimal require­
ments of the rational-basis test. First, when reauthorization
is at issue, Congress has already assembled a legislative
record justifying the initial legislation. Congress is en­
titled to consider that preexisting record as well as the
record before it at the time of the vote on reauthorization.
This is especially true where, as here, the Court has re­
peatedly affirmed the statute’s constitutionality and Con­
gress has adhered to the very model the Court has upheld.
See id., at 174 (“The appellants are asking us to do noth­
ing less than overrule our decision in South Carolina v.
Katzenbach . . . , in which we upheld the constitutionality
of the Act.”); Lopez v. Monterey County, 525 U. S. 266, 283
(1999) (similar).
Second, the very fact that reauthorization is necessary
arises because Congress has built a temporal limitation
into the Act. It has pledged to review, after a span of
years (first 15, then 25) and in light of contemporary
evidence, the continued need for the VRA. Cf. Grutter v.
Bollinger, 539 U. S. 306, 343 (2003) (anticipating, but not
guaranteeing, that, in 25 years, “the use of racial prefer­
ences [in higher education] will no longer be necessary”).
Third, a reviewing court should expect the record sup­
porting reauthorization to be less stark than the record
originally made. Demand for a record of violations equiva­
lent to the one earlier made would expose Congress to a
12 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
catch-22. If the statute was working, there would be less
evidence of discrimination, so opponents might argue that
Congress should not be allowed to renew the statute. In
contrast, if the statute was not working, there would be
plenty of evidence of discrimination, but scant reason to
renew a failed regulatory regime. See Persily 193–194.
This is not to suggest that congressional power in this
area is limitless. It is this Court’s responsibility to ensure
that Congress has used appropriate means. The question
meet for judicial review is whether the chosen means are
“adapted to carry out the objects the amendments have in
view.” Ex parte Virginia, 100 U. S. 339, 346 (1880). The
Court’s role, then, is not to substitute its judgment for that
of Congress, but to determine whether the legislative
record sufficed to show that “Congress could rationally
have determined that [its chosen] provisions were appro­
priate methods.” City of Rome, 446 U. S., at 176–177.
In summary, the Constitution vests broad power in
Congress to protect the right to vote, and in particular to
combat racial discrimination in voting. This Court has
repeatedly reaffirmed Congress’ prerogative to use any
rational means in exercise of its power in this area. And
both precedent and logic dictate that the rational-means
test should be easier to satisfy, and the burden on the
statute’s challenger should be higher, when what is at
issue is the reauthorization of a remedy that the Court has
previously affirmed, and that Congress found, from con­
temporary evidence, to be working to advance the legisla­
ture’s legitimate objective.
III
The 2006 reauthorization of the Voting Rights Act fully
satisfies the standard stated in McCulloch, 4 Wheat., at421: Congress may choose any means “appropriate” and
“plainly adapted to” a legitimate constitutional end. As we
shall see, it is implausible to suggest otherwise.
Cite as: 570 U. S. ____ (2013) 13
GINSBURG, J., dissenting
A
I begin with the evidence on which Congress based its
decision to continue the preclearance remedy. The surest
way to evaluate whether that remedy remains in order is
to see if preclearance is still effectively preventing discrim­
inatory changes to voting laws. See City of Rome, 446
U. S., at 181 (identifying “information on the number and
types of submissions made by covered jurisdictions and
the number and nature of objections interposed by the
Attorney General” as a primary basis for upholding the
1975 reauthorization). On that score, the record before
Congress was huge. In fact, Congress found there were
more DOJ objections between 1982 and 2004 (626) than
there were between 1965 and the 1982 reauthorization
(490). 1 Voting Rights Act: Evidence of Continued Need,
Hearing before the Subcommittee on the Constitution of
the House Committee on the Judiciary, 109th Cong., 2d
Sess., p. 172 (2006) (hereinafter Evidence of Continued
Need).
All told, between 1982 and 2006, DOJ objections blocked
over 700 voting changes based on a determination that the
changes were discriminatory. H. R. Rep. No. 109–478, at
21. Congress found that the majority of DOJ objections
included findings of discriminatory intent, see 679 F. 3d,
at 867, and that the changes blocked by preclearance were
“calculated decisions to keep minority voters from fully
participating in the political process.” H. R. Rep. 109–478,
at 21. On top of that, over the same time period the DOJ
and private plaintiffs succeeded in more than 100 actions
to enforce the §5 preclearance requirements. 1 Evidence
of Continued Need 186, 250.
In addition to blocking proposed voting changes through
preclearance, DOJ may request more information from a
jurisdiction proposing a change. In turn, the jurisdiction
may modify or withdraw the proposed change. The num­
ber of such modifications or withdrawals provides an
14 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
indication of how many discriminatory proposals are
deterred without need for formal objection. Congress
received evidence that more than 800 proposed changes
were altered or withdrawn since the last reauthorization
in 1982. H. R. Rep. No. 109–478, at 40–41.4 Congress also
received empirical studies finding that DOJ’s requests for
more information had a significant effect on the degree to
which covered jurisdictions “compl[ied] with their obliga­
tio[n]” to protect minority voting rights. 2 Evidence of
Continued Need 2555.
Congress also received evidence that litigation under §2
of the VRA was an inadequate substitute for preclearance
in the covered jurisdictions. Litigation occurs only after
the fact, when the illegal voting scheme has already been
put in place and individuals have been elected pursuant to
it, thereby gaining the advantages of incumbency. 1 Evi­
dence of Continued Need 97. An illegal scheme might be
in place for several election cycles before a §2 plaintiff can
gather sufficient evidence to challenge it. 1 Voting Rights
Act: Section 5 of the Act—History, Scope, and Purpose:
Hearing before the Subcommittee on the Constitution of
the House Committee on the Judiciary, 109th Cong., 1st
Sess., p. 92 (2005) (hereinafter Section 5 Hearing). And
litigation places a heavy financial burden on minority
voters. See id., at 84. Congress also received evidence
——————
4 This number includes only changes actually proposed. Congress
also received evidence that many covered jurisdictions engaged in an
“informal consultation process” with DOJ before formally submitting a
proposal, so that the deterrent effect of preclearance was far broader
than the formal submissions alone suggest. The Continuing Need for
Section 5 Pre-Clearance: Hearing before the Senate Committee on the
Judiciary, 109th Cong., 2d Sess., pp. 53–54 (2006). All agree that an
unsupported assertion about “deterrence” would not be sufficient to
justify keeping a remedy in place in perpetuity. See ante, at 17. But it
was certainly reasonable for Congress to consider the testimony of
witnesses who had worked with officials in covered jurisdictions and
observed a real-world deterrent effect.
Cite as: 570 U. S. ____ (2013) 15
GINSBURG, J., dissenting
that preclearance lessened the litigation burden on cov­
ered jurisdictions themselves, because the preclearance
process is far less costly than defending against a §2 claim,
and clearance by DOJ substantially reduces the likelihood
that a §2 claim will be mounted. Reauthorizing the Voting
Rights Act’s Temporary Provisions: Policy Perspectives
and Views From the Field: Hearing before the Subcommit­
tee on the Constitution, Civil Rights and Property Rights
of the Senate Committee on the Judiciary, 109th Cong., 2d
Sess., pp. 13, 120–121 (2006). See also Brief for States of
New York, California, Mississippi, and North Carolina as
Amici Curiae 8–9 (Section 5 “reduc[es] the likelihood that
a jurisdiction will face costly and protracted Section 2
litigation”).
The number of discriminatory changes blocked or de­
terred by the preclearance requirement suggests that the
state of voting rights in the covered jurisdictions would
have been significantly different absent this remedy. Sur­
veying the type of changes stopped by the preclearance
procedure conveys a sense of the extent to which §5 con­
tinues to protect minority voting rights. Set out below are
characteristic examples of changes blocked in the years
leading up to the 2006 reauthorization:
 In 1995, Mississippi sought to reenact a dual voter
registration system, “which was initially enacted in
1892 to disenfranchise Black voters,” and for that
reason, was struck down by a federal court in 1987.
H. R. Rep. No. 109–478, at 39.
 Following the 2000 census, the City of Albany,
Georgia, proposed a redistricting plan that DOJ
found to be “designed with the purpose to limit and
retrogress the increased black voting strength . . .
in the city as a whole.” Id., at 37 (internal quota­
tion marks omitted).
16 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
 In 2001, the mayor and all-white five-member
Board of Aldermen of Kilmichael, Mississippi,
abruptly canceled the town’s election after “an
unprecedented number” of African-American can­
didates announced they were running for office.
DOJ required an election, and the town elected its
first black mayor and three black aldermen. Id., at
36–37.
 In 2006, this Court found that Texas’ attempt to re­
draw a congressional district to reduce the strength
of Latino voters bore “the mark of intentional dis­
crimination that could give rise to an equal protec­
tion violation,” and ordered the district redrawn in
compliance with the VRA. League of United Latin
American Citizens v. Perry, 548 U. S. 399, 440
(2006). In response, Texas sought to undermine
this Court’s order by curtailing early voting in the
district, but was blocked by an action to enforce the
§5 preclearance requirement. See Order in League
of United Latin American Citizens v. Texas, No.
06–cv–1046 (WD Tex.), Doc. 8.
 In 2003, after African-Americans won a majority of
the seats on the school board for the first time in
history, Charleston County, South Carolina, pro­
posed an at-large voting mechanism for the board.
The proposal, made without consulting any of the
African-American members of the school board,
was found to be an “ ‘exact replica’ ” of an earlier
voting scheme that, a federal court had determined,
violated the VRA. 811 F. Supp. 2d 424, 483 (DDC
2011). See also S. Rep. No. 109–295, at 309. DOJ
invoked §5 to block the proposal.
 In 1993, the City of Millen, Georgia, proposed to de­
lay the election in a majority-black district by two
Cite as: 570 U. S. ____ (2013) 17
GINSBURG, J., dissenting
years, leaving that district without representation
on the city council while the neighboring majority­
white district would have three representatives. 1
Section 5 Hearing 744. DOJ blocked the proposal.
The county then sought to move a polling place
from a predominantly black neighborhood in the
city to an inaccessible location in a predominantly
white neighborhood outside city limits. Id., at 816.
 In 2004, Waller County, Texas, threatened to prose­
cute two black students after they announced their
intention to run for office. The county then at­
tempted to reduce the availability of early voting in
that election at polling places near a historically
black university. 679 F. 3d, at 865–866.
 In 1990, Dallas County, Alabama, whose county
seat is the City of Selma, sought to purge its voter
rolls of many black voters. DOJ rejected the purge
as discriminatory, noting that it would have disquali­
fied many citizens from voting “simply because
they failed to pick up or return a voter update
form, when there was no valid requirement that
they do so.” 1 Section 5 Hearing 356.
These examples, and scores more like them, fill the
pages of the legislative record. The evidence was indeed
sufficient to support Congress’ conclusion that “racial
discrimination in voting in covered jurisdictions [re­
mained] serious and pervasive.” 679 F. 3d, at 865.5
——————
5 For an illustration postdating the 2006 reauthorization, see South
Carolina v. United States, 898 F. Supp. 2d 30 (DC 2012), which in­
volved a South Carolina voter-identification law enacted in 2011.
Concerned that the law would burden minority voters, DOJ brought a
§5 enforcement action to block the law’s implementation. In the course
of the litigation, South Carolina officials agreed to binding interpreta­
tions that made it “far easier than some might have expected or feared”
for South Carolina citizens to vote. Id., at 37. A three-judge panel
18 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
Congress further received evidence indicating that
formal requests of the kind set out above represented only
the tip of the iceberg. There was what one commentator
described as an “avalanche of case studies of voting rights
violations in the covered jurisdictions,” ranging from
“outright intimidation and violence against minority
voters” to “more subtle forms of voting rights depriva­
tions.” Persily 202 (footnote omitted). This evidence gave
Congress ever more reason to conclude that the time had
not yet come for relaxed vigilance against the scourge of
race discrimination in voting.
True, conditions in the South have impressively im­
proved since passage of the Voting Rights Act. Congress
noted this improvement and found that the VRA was the
driving force behind it. 2006 Reauthorization §2(b)(1).
But Congress also found that voting discrimination had
evolved into subtler second-generation barriers, and that
eliminating preclearance would risk loss of the gains that
had been made. §§2(b)(2), (9). Concerns of this order, the
Court previously found, gave Congress adequate cause to
reauthorize the VRA. City of Rome, 446 U. S., at 180–182
(congressional reauthorization of the preclearance re­
quirement was justified based on “the number and nature
of objections interposed by the Attorney General” since
the prior reauthorization; extension was “necessary to pre­
serve the limited and fragile achievements of the Act and
to promote further amelioration of voting discrimination”)
(internal quotation marks omitted). Facing such evidence
then, the Court expressly rejected the argument that
disparities in voter turnout and number of elected officials
——————
precleared the law after adopting both interpretations as an express
“condition of preclearance.” Id., at 37–38. Two of the judges commented
that the case demonstrated “the continuing utility of Section 5 of the
Voting Rights Act in deterring problematic, and hence encouraging
non-discriminatory, changes in state and local voting laws.” Id., at 54
(opinion of Bates, J.).
Cite as: 570 U. S. ____ (2013) 19
GINSBURG, J., dissenting
were the only metrics capable of justifying reauthorization
of the VRA. Ibid.
B
I turn next to the evidence on which Congress based its
decision to reauthorize the coverage formula in §4(b).
Because Congress did not alter the coverage formula, the
same jurisdictions previously subject to preclearance
continue to be covered by this remedy. The evidence just
described, of preclearance’s continuing efficacy in blocking
constitutional violations in the covered jurisdictions, itself
grounded Congress’ conclusion that the remedy should be
retained for those jurisdictions.
There is no question, moreover, that the covered juris­
dictions have a unique history of problems with racial
discrimination in voting. Ante, at 12–13. Consideration of
this long history, still in living memory, was altogether
appropriate. The Court criticizes Congress for failing to
recognize that “history did not end in 1965.” Ante, at 20.
But the Court ignores that “what’s past is prologue.” W.
Shakespeare, The Tempest, act 2, sc. 1. And “[t]hose who
cannot remember the past are condemned to repeat it.” 1
G. Santayana, The Life of Reason 284 (1905). Congress
was especially mindful of the need to reinforce the gains
already made and to prevent backsliding. 2006 Reauthor­
ization §2(b)(9).
Of particular importance, even after 40 years and thou­
sands of discriminatory changes blocked by preclearance,
conditions in the covered jurisdictions demonstrated that
the formula was still justified by “current needs.” North-
west Austin, 557 U. S., at 203.
Congress learned of these conditions through a report,
known as the Katz study, that looked at §2 suits between
1982 and 2004. To Examine the Impact and Effectiveness
of the Voting Rights Act: Hearing before the Subcommit­
tee on the Constitution of the House Committee on the
20 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
Judiciary, 109th Cong., 1st Sess., pp. 964–1124 (2005)
(hereinafter Impact and Effectiveness). Because the pri­
vate right of action authorized by §2 of the VRA applies
nationwide, a comparison of §2 lawsuits in covered and
noncovered jurisdictions provides an appropriate yardstick
for measuring differences between covered and noncovered
jurisdictions. If differences in the risk of voting discrimi­
nation between covered and noncovered jurisdictions had
disappeared, one would expect that the rate of successful
§2 lawsuits would be roughly the same in both areas.6 The
study’s findings, however, indicated that racial discrimi­
nation in voting remains “concentrated in the jurisdictions
singled out for preclearance.” Northwest Austin, 557 U. S.,
at 203.
Although covered jurisdictions account for less than 25
percent of the country’s population, the Katz study re­
vealed that they accounted for 56 percent of successful
§2 litigation since 1982. Impact and Effectiveness 974.
Controlling for population, there were nearly four times as
many successful §2 cases in covered jurisdictions as there
were in noncovered jurisdictions. 679 F. 3d, at 874. The
Katz study further found that §2 lawsuits are more likely
to succeed when they are filed in covered jurisdictions
than in noncovered jurisdictions. Impact and Effective­
ness 974. From these findings—ignored by the Court—
Congress reasonably concluded that the coverage formula
continues to identify the jurisdictions of greatest concern.
The evidence before Congress, furthermore, indicated
that voting in the covered jurisdictions was more racially
polarized than elsewhere in the country. H. R. Rep. No.
109–478, at 34–35. While racially polarized voting alone
——————
6 Because preclearance occurs only in covered jurisdictions and can be
expected to stop the most obviously objectionable measures, one would
expect a lower rate of successful §2 lawsuits in those jurisdictions if
the risk of voting discrimination there were the same as elsewhere in the
country.
Cite as: 570 U. S. ____ (2013) 21
GINSBURG, J., dissenting
does not signal a constitutional violation, it is a factor that
increases the vulnerability of racial minorities to dis­
criminatory changes in voting law. The reason is twofold.
First, racial polarization means that racial minorities are
at risk of being systematically outvoted and having their
interests underrepresented in legislatures. Second, “when
political preferences fall along racial lines, the natural
inclinations of incumbents and ruling parties to entrench
themselves have predictable racial effects. Under circum­
stances of severe racial polarization, efforts to gain politi­
cal advantage translate into race-specific disadvantages.”
Ansolabehere, Persily, & Stewart, Regional Differences
in Racial Polarization in the 2012 Presidential Election:
Implications for the Constitutionality of Section 5 of the
Voting Rights Act, 126 Harv. L. Rev. Forum 205, 209
(2013).
In other words, a governing political coalition has an
incentive to prevent changes in the existing balance of
voting power. When voting is racially polarized, efforts by
the ruling party to pursue that incentive “will inevitably
discriminate against a racial group.” Ibid. Just as build­
ings in California have a greater need to be earthquake­
proofed, places where there is greater racial polarization
in voting have a greater need for prophylactic measures to
prevent purposeful race discrimination. This point was
understood by Congress and is well recognized in the
academic literature. See 2006 Reauthorization §2(b)(3),
120 Stat. 577 (“The continued evidence of racially polar­
ized voting in each of the jurisdictions covered by the
[preclearance requirement] demonstrates that racial and
language minorities remain politically vulnerable”); H. R.
Rep. No. 109–478, at 35; Davidson, The Recent Evolution
of Voting Rights Law Affecting Racial and Language
Minorities, in Quiet Revolution 21, 22.
The case for retaining a coverage formula that met
needs on the ground was therefore solid. Congress might
22 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
have been charged with rigidity had it afforded covered
jurisdictions no way out or ignored jurisdictions that
needed superintendence. Congress, however, responded to
this concern. Critical components of the congressional
design are the statutory provisions allowing jurisdictions
to “bail out” of preclearance, and for court-ordered “bail
ins.” See Northwest Austin, 557 U. S., at 199. The VRA
permits a jurisdiction to bail out by showing that it has
complied with the Act for ten years, and has engaged in
efforts to eliminate intimidation and harassment of vot­
ers. 42 U. S. C. §1973b(a) (2006 ed. and Supp. V). It also
authorizes a court to subject a noncovered jurisdiction to
federal preclearance upon finding that violations of the
Fourteenth and Fifteenth Amendments have occurred
there. §1973a(c) (2006 ed.).
Congress was satisfied that the VRA’s bailout mecha­
nism provided an effective means of adjusting the VRA’s
coverage over time. H. R. Rep. No. 109–478, at 25 (the
success of bailout “illustrates that: (1) covered status is
neither permanent nor over-broad; and (2) covered status
has been and continues to be within the control of the
jurisdiction such that those jurisdictions that have a genu­
inely clean record and want to terminate coverage have
the ability to do so”). Nearly 200 jurisdictions have suc­
cessfully bailed out of the preclearance requirement, and
DOJ has consented to every bailout application filed by an
eligible jurisdiction since the current bailout procedure
became effective in 1984. Brief for Federal Respondent 54.
The bail-in mechanism has also worked. Several jurisdic­
tions have been subject to federal preclearance by court
orders, including the States of New Mexico and Arkansas.
App. to Brief for Federal Respondent 1a–3a.
This experience exposes the inaccuracy of the Court’s
portrayal of the Act as static, unchanged since 1965.
Congress designed the VRA to be a dynamic statute, capa­
ble of adjusting to changing conditions. True, many cov­
Cite as: 570 U. S. ____ (2013) 23
GINSBURG, J., dissenting
ered jurisdictions have not been able to bail out due to
recent acts of noncompliance with the VRA, but that truth
reinforces the congressional judgment that these jurisdic­
tions were rightfully subject to preclearance, and ought to
remain under that regime.
IV
Congress approached the 2006 reauthorization of the
VRA with great care and seriousness. The same cannot be
said of the Court’s opinion today. The Court makes no
genuine attempt to engage with the massive legislative
record that Congress assembled. Instead, it relies on
increases in voter registration and turnout as if that were
the whole story. See supra, at 18–19. Without even
identifying a standard of review, the Court dismissively
brushes off arguments based on “data from the record,” and
declines to enter the “debat[e about] what [the] record
shows.” Ante, at 20–21. One would expect more from an
opinion striking at the heart of the Nation’s signal piece of
civil-rights legislation.
I note the most disturbing lapses. First, by what right,
given its usual restraint, does the Court even address
Shelby County’s facial challenge to the VRA? Second, the
Court veers away from controlling precedent regarding the
“equal sovereignty” doctrine without even acknowledging
that it is doing so. Third, hardly showing the respect
ordinarily paid when Congress acts to implement the Civil
War Amendments, and as just stressed, the Court does not
even deign to grapple with the legislative record.
A
Shelby County launched a purely facial challenge to the
VRA’s 2006 reauthorization. “A facial challenge to a
legislative Act,” the Court has other times said, “is, of
course, the most difficult challenge to mount successfully,
since the challenger must establish that no set of circum­
24 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
stances exists under which the Act would be valid.” United
States v. Salerno, 481 U. S. 739, 745 (1987).
“[U]nder our constitutional system[,] courts are not
roving commissions assigned to pass judgment on the
validity of the Nation’s laws.” Broadrick v. Oklahoma, 413
U. S. 601, 610–611 (1973). Instead, the “judicial Power” is
limited to deciding particular “Cases” and “Controversies.”
U. S. Const., Art. III, §2. “Embedded in the traditional
rules governing constitutional adjudication is the principle
that a person to whom a statute may constitutionally be
applied will not be heard to challenge that statute on the
ground that it may conceivably be applied unconstitution­
ally to others, in other situations not before the Court.”
Broadrick, 413 U. S., at 610. Yet the Court’s opinion in
this case contains not a word explaining why Congress
lacks the power to subject to preclearance the particular
plaintiff that initiated this lawsuit—Shelby County, Ala­
bama. The reason for the Court’s silence is apparent, for
as applied to Shelby County, the VRA’s preclearance
requirement is hardly contestable.
Alabama is home to Selma, site of the “Bloody Sunday”
beatings of civil-rights demonstrators that served as the
catalyst for the VRA’s enactment. Following those events,
Martin Luther King, Jr., led a march from Selma to Mont­
gomery, Alabama’s capital, where he called for passage of
the VRA. If the Act passed, he foresaw, progress could be
made even in Alabama, but there had to be a steadfast
national commitment to see the task through to comple­
tion. In King’s words, “the arc of the moral universe is
long, but it bends toward justice.” G. May, Bending To­
ward Justice: The Voting Rights Act and the Transfor­
mation of American Democracy 144 (2013).
History has proved King right. Although circumstances
in Alabama have changed, serious concerns remain.
Between 1982 and 2005, Alabama had one of the highest
rates of successful §2 suits, second only to its VRA-covered
Cite as: 570 U. S. ____ (2013) 25
GINSBURG, J., dissenting
neighbor Mississippi. 679 F. 3d, at 897 (Williams, J.,
dissenting). In other words, even while subject to the
restraining effect of §5, Alabama was found to have
“deni[ed] or abridge[d]” voting rights “on account of race or
color” more frequently than nearly all other States in the
Union. 42 U. S. C. §1973(a). This fact prompted the
dissenting judge below to concede that “a more narrowly
tailored coverage formula” capturing Alabama and a
handful of other jurisdictions with an established track
record of racial discrimination in voting “might be defensi­
ble.” 679 F. 3d, at 897 (opinion of Williams, J.). That is an
understatement. Alabama’s sorry history of §2 violations
alone provides sufficient justification for Congress’ deter­
mination in 2006 that the State should remain subject to
§5’s preclearance requirement.7
A few examples suffice to demonstrate that, at least in
Alabama, the “current burdens” imposed by §5’s preclear­
ance requirement are “justified by current needs.” North-
west Austin, 557 U. S., at 203. In the interim between the
VRA’s 1982 and 2006 reauthorizations, this Court twice
confronted purposeful racial discrimination in Alabama.
In Pleasant Grove v. United States, 479 U. S. 462 (1987),
the Court held that Pleasant Grove—a city in Jefferson
County, Shelby County’s neighbor—engaged in purposeful
discrimination by annexing all-white areas while rejecting
the annexation request of an adjacent black neighborhood.
The city had “shown unambiguous opposition to racial
——————
7 This lawsuit was filed by Shelby County, a political subdivision of
Alabama, rather than by the State itself. Nevertheless, it is appropri­
ate to judge Shelby County’s constitutional challenge in light of in­
stances of discrimination statewide because Shelby County is subject to
§5’s preclearance requirement by virtue of Alabama’s designation as a
covered jurisdiction under §4(b) of the VRA. See ante, at 7. In any
event, Shelby County’s recent record of employing an at-large electoral
system tainted by intentional racial discrimination is by itself sufficient
to justify subjecting the county to §5’s preclearance mandate. See infra,
at 26.
26 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
integration, both before and after the passage of the fed­
eral civil rights laws,” and its strategic annexations
appeared to be an attempt “to provide for the growth of
a monolithic white voting block” for “the impermissible
purpose of minimizing future black voting strength.” Id.,
at 465, 471–472.
Two years before Pleasant Grove, the Court in Hunter v.
Underwood, 471 U. S. 222 (1985), struck down a provision
of the Alabama Constitution that prohibited individuals
convicted of misdemeanor offenses “involving moral turpi­
tude” from voting. Id., at 223 (internal quotation marks
omitted). The provision violated the Fourteenth Amend­
ment’s Equal Protection Clause, the Court unanimously
concluded, because “its original enactment was motivated
by a desire to discriminate against blacks on account of
race[,] and the [provision] continues to this day to have
that effect.” Id., at 233.
Pleasant Grove and Hunter were not anomalies. In
1986, a Federal District Judge concluded that the at-large
election systems in several Alabama counties violated §2.
Dillard v. Crenshaw Cty., 640 F. Supp. 1347, 1354–1363
(MD Ala. 1986). Summarizing its findings, the court
stated that “[f ]rom the late 1800’s through the present,
[Alabama] has consistently erected barriers to keep black
persons from full and equal participation in the social,
economic, and political life of the state.” Id., at 1360.
The Dillard litigation ultimately expanded to include
183 cities, counties, and school boards employing discrim­
inatory at-large election systems. Dillard v. Baldwin Cty.
Bd. of Ed., 686 F. Supp. 1459, 1461 (MD Ala. 1988). One
of those defendants was Shelby County, which eventually
signed a consent decree to resolve the claims against it.
See Dillard v. Crenshaw Cty., 748 F. Supp. 819 (MD Ala.
1990).
Although the Dillard litigation resulted in overhauls of
numerous electoral systems tainted by racial discrimina­
Cite as: 570 U. S. ____ (2013) 27
GINSBURG, J., dissenting
tion, concerns about backsliding persist. In 2008, for
example, the city of Calera, located in Shelby County,
requested preclearance of a redistricting plan that “would
have eliminated the city’s sole majority-black district,
which had been created pursuant to the consent decree in
Dillard.” 811 F. Supp. 2d 424, 443 (DC 2011). Although
DOJ objected to the plan, Calera forged ahead with elec­
tions based on the unprecleared voting changes, resulting
in the defeat of the incumbent African-American council­
man who represented the former majority-black district.
Ibid. The city’s defiance required DOJ to bring a §5 en­
forcement action that ultimately yielded appropriate
redress, including restoration of the majority-black dis­
trict. Ibid.; Brief for Respondent-Intervenors Earl Cun­
ningham et al. 20.
A recent FBI investigation provides a further window
into the persistence of racial discrimination in state poli­
tics. See United States v. McGregor, 824 F. Supp. 2d 1339,
1344–1348 (MD Ala. 2011). Recording devices worn by
state legislators cooperating with the FBI’s investigation
captured conversations between members of the state
legislature and their political allies. The recorded conver­
sations are shocking. Members of the state Senate deri­
sively refer to African-Americans as “Aborigines” and talk
openly of their aim to quash a particular gambling-related
referendum because the referendum, if placed on the
ballot, might increase African-American voter turnout.
Id., at 1345–1346 (internal quotation marks omitted). See
also id., at 1345 (legislators and their allies expressed
concern that if the referendum were placed on the ballot,
“ ‘[e]very black, every illiterate’ would be ‘bused [to the
polls] on HUD financed buses’ ”). These conversations oc­
curred not in the 1870’s, or even in the 1960’s, they took
place in 2010. Id., at 1344–1345. The District Judge
presiding over the criminal trial at which the recorded
conversations were introduced commented that the “re­
28 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
cordings represent compelling evidence that political
exclusion through racism remains a real and enduring
problem” in Alabama. Id., at 1347. Racist sentiments, the
judge observed, “remain regrettably entrenched in the
high echelons of state government.” Ibid.These recent episodes forcefully demonstrate that §5’s
preclearance requirement is constitutional as applied to
Alabama and its political subdivisions.8 And under our
case law, that conclusion should suffice to resolve this
case. See United States v. Raines, 362 U. S. 17, 24–25
(1960) (“[I]f the complaint here called for an application of
the statute clearly constitutional under the Fifteenth
Amendment, that should have been an end to the question
of constitutionality.”). See also Nevada Dept. of Human
Resources v. Hibbs, 538 U. S. 721, 743 (2003) (SCALIA, J.,
dissenting) (where, as here, a state or local government
raises a facial challenge to a federal statute on the ground
that it exceeds Congress’ enforcement powers under the
Civil War Amendments, the challenge fails if the opposing
party is able to show that the statute “could constitution­
ally be applied to some jurisdictions”).
This Court has consistently rejected constitutional
challenges to legislation enacted pursuant to Congress’
enforcement powers under the Civil War Amendments
upon finding that the legislation was constitutional as
applied to the particular set of circumstances before the
Court. See United States v. Georgia, 546 U. S. 151, 159
(2006) (Title II of the Americans with Disabilities Act of
1990 (ADA) validly abrogates state sovereign immunity
“insofar as [it] creates a private cause of action . . . for
conduct that actually violates the Fourteenth Amend­
——————
8 Congress continued preclearance over Alabama, including Shelby
County, after considering evidence of current barriers there to minority
voting clout. Shelby County, thus, is no “redhead” caught up in an
arbitrary scheme. See ante, at 22.
Cite as: 570 U. S. ____ (2013) 29
GINSBURG, J., dissenting
ment”); Tennessee v. Lane, 541 U. S. 509, 530–534 (2004)
(Title II of the ADA is constitutional “as it applies to the
class of cases implicating the fundamental right of access
to the courts”); Raines, 362 U. S., at 24–26 (federal statute
proscribing deprivations of the right to vote based on race
was constitutional as applied to the state officials before
the Court, even if it could not constitutionally be applied
to other parties). A similar approach is warranted here.9
The VRA’s exceptionally broad severability provision
makes it particularly inappropriate for the Court to allow
Shelby County to mount a facial challenge to §§4(b) and 5
of the VRA, even though application of those provisions to
the county falls well within the bounds of Congress’ legis­
lative authority. The severability provision states:
“If any provision of [this Act] or the application
thereof to any person or circumstances is held invalid,
the remainder of [the Act] and the application of the
provision to other persons not similarly situated or
to other circumstances shall not be affected thereby.”
42 U. S. C. §1973p.
In other words, even if the VRA could not constitutionally
be applied to certain States—e.g., Arizona and Alaska, see
ante, at 8—§1973p calls for those unconstitutional applica­
tions to be severed, leaving the Act in place for juris­
dictions as to which its application does not transgress
constitutional limits.
——————
9 The Court does not contest that Alabama’s history of racial discrim­
ination provides a sufficient basis for Congress to require Alabama and
its political subdivisions to preclear electoral changes. Nevertheless,
the Court asserts that Shelby County may prevail on its facial chal­
lenge to §4’s coverage formula because it is subject to §5’s preclearance
requirement by virtue of that formula. See ante, at 22 (“The county
was selected [for preclearance] based on th[e] [coverage] formula.”).
This misses the reality that Congress decided to subject Alabama to
preclearance based on evidence of continuing constitutional violations
in that State. See supra, at 28, n. 8.
30 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
Nevertheless, the Court suggests that limiting the
jurisdictional scope of the VRA in an appropriate case
would be “to try our hand at updating the statute.” Ante,
at 22. Just last Term, however, the Court rejected this
very argument when addressing a materially identical
severability provision, explaining that such a provision is
“Congress’ explicit textual instruction to leave unaffected
the remainder of [the Act]” if any particular “application is
unconstitutional.” National Federation of Independent
Business v. Sebelius, 567 U. S. __, __ (2012) (plurality
opinion) (slip op., at 56) (internal quotation marks omit­
ted); id., at __ (GINSBURG, J., concurring in part, concur­
ring in judgment in part, and dissenting in part) (slip op.,
at 60) (agreeing with the plurality’s severability analysis).
See also Raines, 362 U. S., at 23 (a statute capable of some
constitutional applications may nonetheless be susceptible
to a facial challenge only in “that rarest of cases where
this Court can justifiably think itself able confidently to
discern that Congress would not have desired its legisla­
tion to stand at all unless it could validly stand in its every
application”). Leaping to resolve Shelby County’s facial
challenge without considering whether application of the
VRA to Shelby County is constitutional, or even address­
ing the VRA’s severability provision, the Court’s opinion
can hardly be described as an exemplar of restrained and
moderate decisionmaking. Quite the opposite. Hubris is a
fit word for today’s demolition of the VRA.
B
The Court stops any application of §5 by holding that
§4(b)’s coverage formula is unconstitutional. It pins this
result, in large measure, to “the fundamental principle of
equal sovereignty.” Ante, at 10–11, 23. In Katzenbach,
however, the Court held, in no uncertain terms, that the
principle “applies only to the terms upon which States are
admitted to the Union, and not to the remedies for local
Cite as: 570 U. S. ____ (2013) 31
GINSBURG, J., dissenting
evils which have subsequently appeared.” 383 U. S., at
328–329 (emphasis added).
Katzenbach, the Court acknowledges, “rejected the
notion that the [equal sovereignty] principle operate[s] as
a bar on differential treatment outside [the] context [of the
admission of new States].” Ante, at 11 (citing 383 U. S., at
328–329) (emphasis omitted). But the Court clouds that
once clear understanding by citing dictum from Northwest
Austin to convey that the principle of equal sovereignty
“remains highly pertinent in assessing subsequent dispar­
ate treatment of States.” Ante, at 11 (citing 557 U. S., at
203). See also ante, at 23 (relying on Northwest Austin’s
“emphasis on [the] significance” of the equal-sovereignty
principle). If the Court is suggesting that dictum in
Northwest Austin silently overruled Katzenbach’s limita­
tion of the equal sovereignty doctrine to “the admission of
new States,” the suggestion is untenable. Northwest
Austin cited Katzenbach’s holding in the course of declin-
ing to decide whether the VRA was constitutional or even
what standard of review applied to the question. 557
U. S., at 203–204. In today’s decision, the Court ratchets
up what was pure dictum in Northwest Austin, attributing
breadth to the equal sovereignty principle in flat contra­
diction of Katzenbach. The Court does so with nary an
explanation of why it finds Katzenbach wrong, let alone
any discussion of whether stare decisis nonetheless coun­
sels adherence to Katzenbach’s ruling on the limited “sig­
nificance” of the equal sovereignty principle.
Today’s unprecedented extension of the equal sover­
eignty principle outside its proper domain—the admission
of new States—is capable of much mischief. Federal statutes
that treat States disparately are hardly novelties. See,
e.g., 28 U. S. C. §3704 (no State may operate or permit a
sports-related gambling scheme, unless that State con­
ducted such a scheme “at any time during the period
beginning January 1, 1976, and ending August 31, 1990”);
32 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
26 U. S. C. §142(l) (EPA required to locate green building
project in a State meeting specified population criteria); 42
U. S. C. §3796bb (at least 50 percent of rural drug en­
forcement assistance funding must be allocated to States
with “a population density of fifty-two or fewer persons per
square mile or a State in which the largest county has
fewer than one hundred and fifty thousand people, based
on the decennial census of 1990 through fiscal year 1997”);
§§13925, 13971 (similar population criteria for funding to
combat rural domestic violence); §10136 (specifying rules
applicable to Nevada’s Yucca Mountain nuclear waste site,
and providing that “[n]o State, other than the State of
Nevada, may receive financial assistance under this sub­
section after December 22, 1987”). Do such provisions
remain safe given the Court’s expansion of equal sover­
eignty’s sway?
Of gravest concern, Congress relied on our pathmarking
Katzenbach decision in each reauthorization of the VRA.
It had every reason to believe that the Act’s limited geo­
graphical scope would weigh in favor of, not against, the
Act’s constitutionality. See, e.g., United States v. Morri-
son, 529 U. S. 598, 626–627 (2000) (confining preclearance
regime to States with a record of discrimination bolstered
the VRA’s constitutionality). Congress could hardly have
foreseen that the VRA’s limited geographic reach would
render the Act constitutionally suspect. See Persily 195
(“[S]upporters of the Act sought to develop an evidentiary
record for the principal purpose of explaining why the
covered jurisdictions should remain covered, rather than
justifying the coverage of certain jurisdictions but not
others.”).
In the Court’s conception, it appears, defenders of the
VRA could not prevail upon showing what the record
overwhelmingly bears out, i.e., that there is a need for
continuing the preclearance regime in covered States. In
addition, the defenders would have to disprove the exist­
Cite as: 570 U. S. ____ (2013) 33
GINSBURG, J., dissenting
ence of a comparable need elsewhere. See Tr. of Oral Arg.
61–62 (suggesting that proof of egregious episodes of racial
discrimination in covered jurisdictions would not suffice to
carry the day for the VRA, unless such episodes are shown
to be absent elsewhere). I am aware of no precedent for
imposing such a double burden on defenders of legislation.
C
The Court has time and again declined to upset legisla­
tion of this genre unless there was no or almost no evi­
dence of unconstitutional action by States. See, e.g., City
of Boerne v. Flores, 521 U. S. 507, 530 (1997) (legislative
record “mention[ed] no episodes [of the kind the legislation
aimed to check] occurring in the past 40 years”). No such
claim can be made about the congressional record for the
2006 VRA reauthorization. Given a record replete with
examples of denial or abridgment of a paramount federal
right, the Court should have left the matter where it
belongs: in Congress’ bailiwick.
Instead, the Court strikes §4(b)’s coverage provision
because, in its view, the provision is not based on “current
conditions.” Ante, at 17. It discounts, however, that one
such condition was the preclearance remedy in place in
the covered jurisdictions, a remedy Congress designed
both to catch discrimination before it causes harm, and to
guard against return to old ways. 2006 Reauthorization
§2(b)(3), (9). Volumes of evidence supported Congress’ de­
termination that the prospect of retrogression was real.
Throwing out preclearance when it has worked and is
continuing to work to stop discriminatory changes is like
throwing away your umbrella in a rainstorm because you
are not getting wet.
But, the Court insists, the coverage formula is no good;
it is based on “decades-old data and eradicated practices.”
Ante, at 18. Even if the legislative record shows, as engag­
ing with it would reveal, that the formula accurately
34 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
identifies the jurisdictions with the worst conditions of
voting discrimination, that is of no moment, as the Court
sees it. Congress, the Court decrees, must “star[t] from
scratch.” Ante, at 23. I do not see why that should be so.
Congress’ chore was different in 1965 than it was in
2006. In 1965, there were a “small number of States . . .
which in most instances were familiar to Congress by
name,” on which Congress fixed its attention. Katzenbach,
383 U. S., at 328. In drafting the coverage formula, “Con­
gress began work with reliable evidence of actual voting
discrimination in a great majority of the States” it sought
to target. Id., at 329. “The formula [Congress] eventually
evolved to describe these areas” also captured a few States
that had not been the subject of congressional factfinding.
Ibid. Nevertheless, the Court upheld the formula in its
entirety, finding it fair “to infer a significant danger of the
evil” in all places the formula covered. Ibid.The situation Congress faced in 2006, when it took up
reauthorization of the coverage formula, was not the same.
By then, the formula had been in effect for many years,
and all of the jurisdictions covered by it were “familiar
to Congress by name.” Id., at 328. The question before
Congress: Was there still a sufficient basis to support
continued application of the preclearance remedy in each
of those already-identified places? There was at that point
no chance that the formula might inadvertently sweep in
new areas that were not the subject of congressional
findings. And Congress could determine from the record
whether the jurisdictions captured by the coverage for­
mula still belonged under the preclearance regime. If they
did, there was no need to alter the formula. That is why
the Court, in addressing prior reauthorizations of the
VRA, did not question the continuing “relevance” of the
formula.
Consider once again the components of the record before
Congress in 2006. The coverage provision identified a
Cite as: 570 U. S. ____ (2013) 35
GINSBURG, J., dissenting
known list of places with an undisputed history of serious
problems with racial discrimination in voting. Recent
evidence relating to Alabama and its counties was there
for all to see. Multiple Supreme Court decisions had
upheld the coverage provision, most recently in 1999.
There was extensive evidence that, due to the preclear­
ance mechanism, conditions in the covered jurisdictions
had notably improved. And there was evidence that pre­
clearance was still having a substantial real-world effect,
having stopped hundreds of discriminatory voting changes
in the covered jurisdictions since the last reauthorization.
In addition, there was evidence that racial polarization in
voting was higher in covered jurisdictions than elsewhere,
increasing the vulnerability of minority citizens in those
jurisdictions. And countless witnesses, reports, and case
studies documented continuing problems with voting dis­
crimination in those jurisdictions. In light of this rec­
ord, Congress had more than a reasonable basis to
conclude that the existing coverage formula was not out of
sync with conditions on the ground in covered areas. And
certainly Shelby County was no candidate for release
through the mechanism Congress provided. See supra, at
22–23, 26–28.
The Court holds §4(b) invalid on the ground that it is
“irrational to base coverage on the use of voting tests 40
years ago, when such tests have been illegal since that
time.” Ante, at 23. But the Court disregards what Con­
gress set about to do in enacting the VRA. That extraor­
dinary legislation scarcely stopped at the particular tests
and devices that happened to exist in 1965. The grand
aim of the Act is to secure to all in our polity equal citizen­
ship stature, a voice in our democracy undiluted by race.
As the record for the 2006 reauthorization makes abun­
dantly clear, second-generation barriers to minority voting
rights have emerged in the covered jurisdictions as at­
tempted substitutes for the first-generation barriers that
36 SHELBY COUNTY v. HOLDER
GINSBURG, J., dissenting
originally triggered preclearance in those jurisdictions.
See supra, at 5–6, 8, 15–17.
The sad irony of today’s decision lies in its utter failure
to grasp why the VRA has proven effective. The Court
appears to believe that the VRA’s success in eliminating
the specific devices extant in 1965 means that preclear­
ance is no longer needed. Ante, at 21–22, 23–24. With
that belief, and the argument derived from it, history
repeats itself. The same assumption—that the problem
could be solved when particular methods of voting discrim­
ination are identified and eliminated—was indulged and
proved wrong repeatedly prior to the VRA’s enactment.
Unlike prior statutes, which singled out particular tests or
devices, the VRA is grounded in Congress’ recognition of
the “variety and persistence” of measures designed to
impair minority voting rights. Katzenbach, 383 U. S., at
311; supra, at 2. In truth, the evolution of voting discrim­
ination into more subtle second-generation barriers is
powerful evidence that a remedy as effective as preclear­
ance remains vital to protect minority voting rights and
prevent backsliding.
Beyond question, the VRA is no ordinary legislation. It
is extraordinary because Congress embarked on a mission
long delayed and of extraordinary importance: to realize
the purpose and promise of the Fifteenth Amendment.
For a half century, a concerted effort has been made to
end racial discrimination in voting. Thanks to the Voting
Rights Act, progress once the subject of a dream has been
achieved and continues to be made.
The record supporting the 2006 reauthorization of
the VRA is also extraordinary. It was described by the
Chairman of the House Judiciary Committee as “one of
the most extensive considerations of any piece of legisla­
tion that the United States Congress has dealt with in the
27½ years” he had served in the House. 152 Cong. Rec.
H5143 (July 13, 2006) (statement of Rep. Sensenbrenner).
Cite as: 570 U. S. ____ (2013) 37
GINSBURG, J., dissenting
After exhaustive evidence-gathering and deliberative
process, Congress reauthorized the VRA, including the
coverage provision, with overwhelming bipartisan support.
It was the judgment of Congress that “40 years has not
been a sufficient amount of time to eliminate the vestiges
of discrimination following nearly 100 years of disregard
for the dictates of the 15th amendment and to ensure that
the right of all citizens to vote is protected as guaranteed
by the Constitution.” 2006 Reauthorization §2(b)(7), 120
Stat. 577. That determination of the body empowered to
enforce the Civil War Amendments “by appropriate legis­
lation” merits this Court’s utmost respect. In my judg­
ment, the Court errs egregiously by overriding Congress’
decision.
* * *
For the reasons stated, I would affirm the judgment of
the Court of Appeals.