In Shelby County v. Holder, the Supreme Court struck down the decades-old coverage formula that triggered section 5 of the Voting Rights Act. Before the ink was dry on that opinion, efforts were underway to breathe new life into section 5. Calls for a legislative solution were immediate, and soon after that legislation creating a new coverage formula was proposed. Additionally, the Department of Justice brought a lawsuit that, if successful, will require the State of Texas to once again submit to preclearance. Thus, the issue that the Supreme Court avoided in Shelby County “ the constitutionality of section 5 “ could soon reappear. This Article addresses that eventuality and takes aim at only the most controversial aspect of section 5”the effects test. The effects test requires preclearance denial where a voting change will have an unequal impact on racial groups. The effects test is unconstitutional for two reasons. First, because the effects test stands independent from section 5's ban on intentionally discriminatory voting practices, it is not a congruent and proportional means of enforcing the Fifteenth Amendment. Second, because the effects test is used almost exclusively to gerrymander districts along racial lines, it violates the Equal Protection Clause. If section 5 is to remain a tool to eliminate discrimination in voting, then updating the coverage formula to address contemporary discrimination is only the first step. Equally important is ensuring that it is used to eliminate intentional discrimination in voting. Recognizing that the effects test perverts that prohibition could avoid the legal challenges that are sure to come.
Northern Illinois University Law Review
Thompson, Joshua P.
"Towards a Post-Shelby County Section 5 Where a Constitutional Coverage Formula Does Not Reauthorize the Effects Test,"
Northern Illinois University Law Review: Vol. 34:
3, Article 7.
Joshua P. Thompson, Towards a Post-Shelby County Section 5 Where a Constitutional Coverage Formula Does Not Reauthorize the Effects Test, 34 N. Ill. U. L. Rev. 585 (2014).