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September 23, 2013

By: Jerry H. Goldfeder

Earlier this year we previewed two election cases before the Supreme Court that had the potential of dramatically changing the field: a dispute originating from Arizona concerning Congress' ability to preempt state law pursuant to the Elections Clause of the Constitution, and a case out of Alabama challenging the constitutionality of the "preclearance" provision(Section 5) of the Voting Rights Act. In the Arizona case, the Supreme Court upheld Congress' power to enact the National Voter Registration Act, also known as the Motor Voter Law. No real change here.

On the other hand, in the Voting Rights Act case, Shelby County v. Holder, the court upheld the constitutionality of preclearance—the requirement that certain jurisdictions submit proposed election changes to either the U.S. Department of Justice or a three-judge federal court for a review for discrimination—but invalidated Section 4(b) of the act, the provision sometimes called the "coverage formula" that identifies which jurisdictions are subject to Section 5's preclearance requirements. The court's rationale was that this formula was outdated and, therefore, an impermissible standard by which to subject any jurisdiction to the preclearance requirements of Section 5. In short, the Shelby County ruling gutted Section 5 of the Voting Rights Act unless and until Congress revises the formula of Section 4.

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