If you’re a voting rights advocate or a law review editor, you might have noticed something different on Westlaw. After the Supreme Court invalidated the Voting Rights Act’s coverage formula in Shelby County v. Holder, Westlaw displayed a “red flag” on four previous decisions upholding the VRA, including South Carolina v. Katzenbach, which famously established the rationality standard for Congress’s Fifteenth Amendment enforcement authority. On Westlaw, a red flag means that a decision has been overturned or abrogated, thus signaling to bench and bar alike that it is no longer good law. Relatedly, Westlaw’s description of Shelby County’s holding stated that those four decisions had been abrogated.
But after a recent back-and-forth between Westlaw representatives and me, Westlaw has revised its description of Shelby County’s holding to delete any reference to abrogated decisions and to remove any corresponding red flags. So why did Westlaw change course? Because Shelby County addresses only the 2006 reauthorization of the VRA’s coverage formula.
In 1965, Congress enacted the VRA and required certain covered jurisdictions to obtain pre-approval from federal authorities before implementing election-law changes. The original “coverage formula” was intended to be temporary and was set to expire after five years. But after determining that racial discrimination in voting remained a persistent problem, Congress reauthorized the coverage formula in 1970, 1975, 1982, and 2006.
In Shelby County, the Court faulted Congress for differentiating between the States based on “decades-old data relevant to decades-old problems.” The Court held that the 2006 coverage formula violated the so-called equal-sovereignty principle by imposing “current burdens” that were unjustified by “current needs.” In so holding, the Court approvingly stated that it had upheld the original VRA as well as the 1970, 1975, and 1982 reauthorizations. It did not overturn any of those decisions. After all, the thrust of the Court’s reasoning was that the VRA’s coverage formula had outlived its usefulness by 2006—not that the previous versions were unconstitutional at the time that they were enacted.
And tellingly, even though Justice Ginsburg’s dissenting opinion criticized the Court for misapplying Katzenbach’s deferential standard, she did not accuse the majority of overturning it. Rather, Ginsburg argued that “[t]oday’s Court does not purport to alter settled precedent establishing that the dispositive question is whether Congress has employed ‘rational means.’”
Westlaw therefore erred in assuming that Shelby County overturned Katzenbach and its progeny. Might this all be a bit persnickety? Perhaps. Red flags and descriptors of a case’s holding are not binding on any court. Any seasoned advocate knows that you shouldn’t rely on or cite them. But they are a strong signal that an idea is “off the wall” or disfavored. And they are certainly confusing to law students or even attorneys who are new to voting rights. Indeed, as this post illustrates, Shelby County could be a useful case for teaching 1Ls about holdings and precedent.
But there’s a deeper point here. Although Shelby County had a dramatic and immediate real-world impact, its future doctrinal importance is likely minimal for two reasons. First, by their own terms, neither Shelby County nor its predecessor Northwest Austin v. Holder—nor, for that matter, City of Boerne v. Flores—overturned Katzenbach’s rationality standard for Congress’s Fifteenth Amendment enforcement authority, where Congress’s power to combat racial discrimination in voting is at its zenith. And second, because Shelby County focused on the coverage formula’s differentiation between the States, its equal-sovereignty principle does not control when a statute applies nationwide, such as Sections 2 and 3(c) of the VRA. So in addition to resting on questionabledoctrinal grounds, Shelby County may be easily cabined.
Voting rights advocates and scholars should thus embrace Katzenbach’s rationality standard in defending the VRA’s constitutionality. Now they may do so without raising any red flags.