After Shelby County, did Louisiana still have to obtain federal preclearance before changing voting procedures?

Plain-English summary

Louisiana's Secretary of State asked what the U.S. Supreme Court's decision in Shelby County meant for federal preclearance of Louisiana election changes. In this September 2013 opinion, the AG concluded that Louisiana was no longer covered by the invalidated Section 4(b) formula and therefore did not have to obtain Section 5 preclearance on that basis before implementing new voting practices.

The AG said Louisiana statutes referring to Section 5 preclearance remained state law but were inoperative at that time. The opinion identified two ways they could operate again: Congress could adopt a new coverage formula, or a court could place Louisiana or a Louisiana political subdivision under preclearance through Section 3(c) of the Voting Rights Act after the constitutional findings described there. The opinion did not say Section 5 itself had been invalidated.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Louisiana election officials

For the law as analyzed in 2013, the AG said election changes no longer needed federal Section 5 preclearance solely because Louisiana had been covered under the former Section 4(b) formula. Statutory references to that preclearance were suspended in operation, though the statutes remained enacted.

Legislators and voting-rights advocates

The opinion distinguished the invalidated coverage formula from Section 5 itself. It said a new formula enacted by Congress could make the state preclearance provisions operative again. It also noted that Section 3(c) still allowed a court, after the specified constitutional finding, to impose preclearance on a state or political subdivision for as long as the court order remained valid.

Common questions

Did Louisiana have to seek Section 5 approval for voting changes immediately after Shelby County?

The AG said no under the former Section 4(b) coverage formula, which the Supreme Court held unconstitutional.

Were Louisiana laws requiring federal preclearance repealed?

No. The opinion described them as remaining state law but inoperative at the time of its September 2013 analysis.

Could preclearance apply again without Congress passing a new formula?

The AG said yes if a court placed Louisiana or a political subdivision under Section 3(c) after finding the constitutional violations specified there. The opinion did not say such an order had been entered.

Did Shelby County strike down Section 5 itself?

No. The opinion explained that the Supreme Court's decision addressed the Section 4(b) coverage formula, not the validity of Section 5.

Background and statutory framework

The 1965 Voting Rights Act's Section 4(b) formula had made Louisiana a covered jurisdiction for Section 5 preclearance. The AG read Shelby County, Alabama v. Holder, 133 S.Ct. 2612 (U.S. 2013) as removing that formula's application. The opinion discussed Section 3(c) as a separate court-order route to preclearance. It cited Louisiana statutes that then referred to Section 5 preclearance but concluded they were dormant unless coverage returned.

Citations

• 42 U.S.C. § 1973b: former coverage formula discussed by the AG.
• 42 U.S.C. § 1973c(a): Section 5 preclearance provision cited by the AG.
• 42 U.S.C. § 1973a(c): court-ordered preclearance route.
• Shelby County, Alabama v. Holder, 133 S.Ct. 2612 (U.S. 2013): Supreme Court coverage-formula decision.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/13-0124

Original opinion text

~tnte 'of 1fiouisinnn
DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE
70804-9005
JAMES D. "BUDDY" CALDWELL
ATTORNEY GENERAL
September 24, 20'13
OPINION 13-0124
15-A
CONSTITUTIONAL LAW
Honorable Tom Schedler
Secretary of State
42 U.S.C. § 1971 et seq.
Post Office Box 94125
In light of the United States Supreme Court decision in Shelby County,
Baton Rouge, Louisiana 70804
Louisiana is no longer a covered jurisdiction under Section 4(b) of the
Voting Rights Act ("VRA") and is not required to obtain preclearance pursuant to Section 5 of the VRA prior to implementing any new voting qualification or prerequisite to voting, or standard, practice, or
Dear Secretary Schedler: procedure.

You have requested an opinion of the Attorney General as to whether Louisiana is still subject to Section 5 of the 1965 Voting Rights Act ("VRA") in tight of the United States Supreme Court ruling in the case of Shelby County, Alabama v. Holder, 133 S.Ct. 2612 (U.S. 2013). If Louisiana is no longer subject to Section 5, you would like to know how Shelby County affects state statutes that may still require preclearance pursuant to the Voting Rights Act. Your request has been assigned to me for research and reply.

The VRA 1 was enacted to protect the Fifteenth Amendment's guarantee that the right to vote shall not be abridged or denied on account of race or color. 2 Section 5 of the VRA required certain covered jurisdictions3 to refrain from implementing any new "yoting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect," unless they had first obtained preclearance for the change from the United States Attorney General or the United States District Court for the District of Columbia. 4 Section 4 of the VRA established the formula used to determine which jurisdictions would be subject to Section 5. 5 Louisiana was considered a covered jurisdiction under Section 4(b) of the VRA. 6

On June 25,2013, the Supreme Court ruled in Shelby County that the coverage formula in Section 4 of the VRA is unconstitutional and "can no longer be used as a basis for subjecting jurisdictions to preclearance.,,7 The Supreme Court's ruling "stops any application of §5 by holding that §4(b)'s coverage formula is unconstitutional."s Thus, in light of Shelby County, Louisiana is no longer a "covered jurisdiction" under Section 4 of

42 U.S.C. § 1971 et seq.
2
See La. Atty. Gen. Op. No. 07-0291.
3
42 U.S.C. § 1973b.
4
42 U.S.C. § 1973c(a).
5
42 U.S.C. § 1973b.
6
Louisiana became a covered jurisdiction pursuant to Section 4(b) of the VRA on November 1, 1964. See 28 C.F.R. pt. 51, App. (2012).
7 Shelby Cnty., 133 S.Ct. at 2631.
8 Shelby Cnty., 133 S.Ct. at 2648 (citing dissent of Ginsberg, J.).

Page 2

OPINION 13·0124
Honorable Tom Schedler
Page No.2

the VRA, and it is not required to obtain preclearance pursuant to Section 5 of the Voting Rights Act.

Additionally, you have asked our office to discuss the effect of Shelby County on various state statutes which require Section 5 preclearance prior to implementing changes in voting practices, standards, or procedures. 9 The Supreme Court's decision was limited to the coverage formula contained in Section 4 of the VRA. The Court did not issue a holding on Section 5 of the VRA itself. 1o Congress, in the future, may draft another coverage formula based on current conditions. Therefore, it is the opinion of this office that in light of the Supreme Court's decision in Shelby County, all Louisiana state statutes which require Section 5 preclearance are presently rendered inoperative and enforcement of such is suspended at this time. Such statutes remain as state law, albeit dormant for now, and the laws would become enforceable in the future if Congress enacts a new coverage formula.

Finally, the Court's ruling in Shelby County also did not affect Section 3(c) of the VRA. Section 3(c) of the VRA allows a court, in a proper case, to impose Section 5 preclearance on states or political subdivisions upon finding that violations of the Fourteenth or Fifteenth Amendment occurred within the territory of such state or political subdivision. 11 Any state statute requiring Section 5 preclearance would be operative and enforceable again if Louisiana, or any political subdivision within Louisiana, were to become a covered jurisdiction pursuant to a court order under Section 3(c) of the VRA as long as the court order remains valid.

In conclusion, Louisiana is no longer a "covered jurisdiction" under Section 4 of the VRA, and it is not required to obtain preclearance pursuant to Section 5 of the VRA prior to implementing changes in voting practices or procedures. All Louisiana statutes which require Section 5 preclearance remain as state law; however, they are unenforceable at this time. The statues requiring preclearance would become operative again at any time Congress enacts a new coverage formula or if Louisiana, or any jurisdiction within Louisiana, becomes a covered jurisdiction pursuant to a court order under Section 3(c) of the VRA.

9
See e.g., La. RS. 17:71.5, La. RS. 18:1922, La. RS. 18:1941 and La. RS. 18:1942.
10
Shelby Cnty., 133 S. Ct. at 2631.
11
42 U.S.C. § 1973a(c); See also Jeffers v. Clinton, 740 F. Supp. 585, 587 (E.D. Ark. 1990).

Page 3

OPINION 13-0124
Honorable Tom Schedler
Page No.3

We hope that this opinion has adequately addressed the legal issues you have raised. If our office can be of any further assistance, please do not hesitate to contact us.

With best regards,

JAMES D. "BUDDY" CALDWELL
ATIORNEY GENERAL

BY:~a~ ~------
Assistant Attorney General
JDC: ECD