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Washington University Journal of Law & Policy

After Shelby County v. Holder, Can Independent Commissions Take the Place of Section 5 of the Voting Rights Act?

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Page d'accueil Perspectives After Shelby County v. Holder, Can Independent Commissions Take the Place of Section 5 of the Voting Rights Act?
In 2013 the Supreme Court, in Shelby County v. Holder, held that Section 4(b) of the Voting Rights Act1 was unconstitutional.2 Section 4(b) was a preclearance formula that considered a State’s or county’s past practices (for example discriminatory tests), and the effect of those practices (for example low voter registration), then determined which States and counties were required to obtain authorization from federal authorities before changing voting procedures.3 Fast forward to 2013, the Supreme Court held in Shelby County that Section 4(b) was based on outdated data and therefore unconstitutional.4

At the time the Shelby County decision came down, voters and some States were already using “independent redistricting commissions”5 as a way to combat partisan gerrymandering.6 In the 2015 decision of Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court held that the Elections Clause and  2 U.S.C.  § 2a(c) (determining Congressional districts) permitted the use of an independent commission to adopt congressional districts.7 This gave the use of independent commissions more legitimacy in the voting process.

The Voting Rights Act is still needed in this country as more  States are putting forth voting and election legislation that is facially neutral, but has a disparate impact on minorities’ opportunity  to vote.8 Without some sort of preclearance or a “checks and balance” system, discriminatory voting laws will likely continue to pass in many States.9 An independent commission can step into the shoes  that Section 4(b) of the Voting Rights Act use to fill. Part II of this note will explore the history of the Voting Rights Act and independent redistricting commissions, as well as an explanation of the pertinent Supreme Court cases mentioned above. Then in Part III, this note will explain the feasibility and effectiveness of using independent commissions in creating and implementing voting laws and procedures.

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  1. 52 U.S.C. § 10301 (Westlaw through Pub. L. No. 114-316).
  2. 133 S. Ct. 2612 (2013).
  3. Id. at 2627.
  4. Id. at 2631.
  5. An independent commission “is a committee composed of appointed officials [usually private citizens] who assume responsibility for redistricting within a state.” NAACP Legal Def. & Educ. Fund, Independent Redistricting Commissions: Reforming Redistricting Without Reversing Progress Toward Racial Equality, at 1, http://www.naacpldf.org/files/publications/ IRC_Report.pdf (last visited Nov. 11, 2015).
  6. Gerrymandering, infra note 67.
  7. 135 S. Ct. 2652 (2015).