Congressional Redistricting and the Voting
Rights Act: A Legal Overview
L. Paige Whitaker
Legislative Attorney
August 30, 2013
Congressional Research Service
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www.crs.gov
R42482
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Congressional Redistricting and the Voting Rights Act: A Legal Overview

Summary
The Constitution requires a count of the U.S. population every 10 years. Based on the census, the
number of seats in the House of Representatives is reapportioned among the states. Thus, at least
every 10 years, in response to changes in the number of Representatives apportioned to it or to
shifts in its population, each state is required to draw new boundaries for its congressional
districts. Although each state has its own process for redistricting, congressional districts must
conform to a number of constitutional and federal statutory standards, including the Voting Rights
Act (VRA) of 1965.
The VRA was enacted under Congress’s authority to enforce the 15th Amendment, which provides
that the right of citizens to vote shall not be denied or abridged on account of race, color, or
previous servitude. Section 2 of the VRA prohibits the use of any voting qualification or
practice—including the drawing of congressional redistricting plans—that results in the denial or
abridgement of the right to vote based on race, color, or membership in a language minority. The
statute further provides that a violation is established if, based on the totality of circumstances, it
is shown that political processes are not equally open to members of a racial or language minority
group in that its members have less opportunity than other members of the electorate to
participate and to elect representatives of choice. In decisions including Thornburg v. Gingles and
Bartlett v. Strickland, the Supreme Court further interpreted the requirements of Section 2.
In its June 2013 decision, Shelby County v. Holder, the U.S. Supreme Court invalidated Section
4(b) of the VRA. Section 4(b) contained a formula prescribing which states and jurisdictions with
a history of discrimination were required to obtain prior approval or “preclearance” under Section
5 before changing any voting law, including congressional redistricting plans. Section 5 required
those “covered” jurisdictions to preclear their redistricting plans with either the Department of
Justice or the U.S. District Court for the District of Columbia before implementation. In order to
be granted preclearance, the covered jurisdiction had the burden of proving that the proposed
voting change neither had the purpose, nor would it have the effect, of denying or abridging the
right to vote on account of race or color, or membership in a language minority group. Although
the Court invalidated only the coverage formula in Section 4, by extension, Section 5 has been
rendered currently inoperable. As a result, the nine states and six jurisdictions previously covered
under the formula are no longer subject to the VRA’s preclearance requirement. Section 2 of the
VRA, which applies in all jurisdictions, was not at issue in this case.
In the 113th Congress, legislation has been introduced that would establish certain standards and
requirements for congressional redistricting, including identical bills H.R. 223 and H.R. 278, the
“John Tanner Fairness and Independence in Redistricting Act,” H.R. 337, the “Redistricting
Transparency Act of 2013,” and H.R. 2756, the “Redistricting and Voter Protection Act of 2013.”


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Congressional Redistricting and the Voting Rights Act: A Legal Overview

Contents
Section 2 of the Voting Rights Act ................................................................................................... 2
“Majority-Minority” District Requirement ............................................................................... 2
Requirement that Minority Group Constitute More Than 50% of Voting Population in
Single-Member District .......................................................................................................... 3
Constitutional Limits Under 14th Amendment Equal Protection Clause ................................... 4
Section 4(b) of the Voting Rights Act—Invalidated by U.S. Supreme Court in Shelby
County v. Holder ........................................................................................................................... 5
Coverage Formula ..................................................................................................................... 5
Release from Coverage .............................................................................................................. 5
Section 5 of the Voting Rights Act ................................................................................................... 6
“Effect” Test .............................................................................................................................. 7
“Purpose” Test ........................................................................................................................... 8
Shelby County v. Holder: Coverage Formula Held Unconstitutional .............................................. 9
Background................................................................................................................................ 9
Supreme Court Decision .......................................................................................................... 10
Implications for Legislation to Reinstate Section 5 Preclearance ........................................... 11
Congressional Redistricting Legislation ........................................................................................ 11
113th Congress ......................................................................................................................... 12
112th Congress ......................................................................................................................... 12

Contacts
Author Contact Information........................................................................................................... 13

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Congressional Redistricting and the Voting Rights Act: A Legal Overview

he Constitution requires a count of the U.S. population every 10 years.1 Based on the
census, the number of seats in the House of Representatives is reapportioned among the
Tstates.2 Thus, at least every 10 years, in response to changes in the number of
Representatives apportioned to it or to shifts in its population, each state is required to
draw new boundaries for its congressional districts. Although each state has its own process for
redistricting, congressional districts must conform to a number of constitutional and federal
statutory standards,3 including the Voting Rights Act (VRA) of 1965.4
The VRA was enacted under Congress’s authority to enforce the 15th Amendment, which provides
that the right of citizens to vote shall not be denied or abridged on account of race, color, or
previous servitude.5 In a series of cases and evolving jurisprudence, the U.S. Supreme Court has
interpreted how the VRA applies in the context of congressional redistricting. These decisions
inform how congressional district boundaries are drawn, and whether legal challenges to such
redistricting plans will be successful.
This report provides a legal overview of Section 2 of the VRA, a key provision affecting
congressional redistricting, and selected Supreme Court case law. It discusses Sections 4 and 5,
and the recent Supreme Court decision holding Section 4(b) unconstitutional, Shelby County v.
Holder.6 Section 4 contained a coverage formula that identified states and jurisdictions that were
required to gain federal approval or “preclearance” to proposed redistricting plans under Section
5. The report also provides an overview of selected legislation in the 112th and 113th Congresses
that would establish additional requirements and standards for congressional redistricting.

1 U.S. CONST. art. I, §2, cl. 3 (“The actual Enumeration shall be made within three Years after the first Meeting of the
Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law
direct.”).
2 U.S. CONST. amend. XIV, §2, cl. 1 (“Representatives shall be apportioned among the several States according to
their respective numbers ...”).
3 While beyond the scope of this report, congressional districts are also subject to the one-person, one-vote equality
standard. See Wesberry v. Sanders, 376 U.S. 1, 7-8, 18 (1964) (interpreting article I, section 2, clause 1 of the U.S.
Constitution that Representatives be chosen “by the People of the several States” and be “apportioned among the
several States ... according to their respective Numbers,” to require that “as nearly as is practicable, one man’s vote in a
congressional election is to be worth as much as another’s”); Karcher v. Dagett, 462 U.S. 725, 740 (1983) (holding that
absolute population equality is the standard unless a deviation is necessary to achieve “some legitimate state objective,”
such as “consistently applied legislative policies,” including, for example, “making districts more compact, respecting
municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbents.”). In addition,
congressional districts might theoretically be subject to claims of partisan political gerrymandering, although the
standard that a court could use, to ascertain such a determination and grant relief, remains unresolved. See LULAC v.
Perry, 548 U.S. 399 (2006) (plurality opinion); CRS Report RS22479, Congressional Redistricting: A Legal Analysis of
the Supreme Court Ruling in League of United Latin American Citizens (LULAC) v. Perry, by L. Paige Whitaker.
4 P.L. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§1971 et seq.).
5 U.S. CONST. amend. XV (“The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude.”). Since its ratification in
1870, however, the use of various election procedures by certain states diluted the impact of votes cast by African
Americans or prevented voting by African Americans entirely. As case-by-case enforcement under the Civil Rights Act
proved to be protracted and ineffective, Congress enacted the Voting Rights Act of 1965. See H. REP. NO. 89-439, at 1,
11-12, 15-16, 19-20, reprinted in 1965 U.S.C.C.A.N. 2437, 2439-44, 2446-47, 2451-52 (discussing discriminatory
procedures such as poll taxes, literacy tests, and vouching requirements).
6 133 S. Ct. 2612 (2013).
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For further discussion of the process of congressional redistricting and the apportionment of
congressional seats, see CRS Report R41357, The U.S. House of Representatives Apportionment
Formula in Theory and Practice, by Royce Crocker.
Section 2 of the Voting Rights Act
Congressional district boundaries in every state are required to comply with Section 2 of the
VRA. Section 2 provides a right of action for private citizens or the government to challenge
discriminatory voting practices or procedures, including minority vote dilution, the diminishing
or weakening of minority voting power.
Specifically, Section 2 prohibits any voting qualification or practice—including the drawing of
congressional redistricting plans—applied or imposed by any state or political subdivision that
results in the denial or abridgement of the right to vote based on race, color, or membership in a
language minority.7 The statute further provides that a violation is established if:
based on the totality of circumstances, it is shown that the political processes leading to
nomination or election in the State or political subdivision are not equally open to
participation by [members of a racial or language minority group] in that its members have
less opportunity than other members of the electorate to participate in the political processes
and to elect representatives of their choice.8
“Majority-Minority” District Requirement
Under certain circumstances, the creation of one or more “majority-minority” districts may be
required in a congressional redistricting plan. A majority-minority district is one in which a racial
or language minority group comprises a voting majority. The creation of such districts can avoid
racial vote dilution by preventing the submergence of minority voters into the majority, which can
deny minority voters the opportunity to elect a candidate of their choice. In the landmark decision
Thornburg v. Gingles,9 the Supreme Court established a three-prong test that plaintiffs claiming
vote dilution under Section 2 must prove:
First, the minority group must be able to demonstrate that it is sufficiently large and
geographically compact to constitute a majority in a single-member district....
Second, the minority group must be able to show that it is politically cohesive....
Third, the minority must be able to demonstrate that the white majority votes sufficiently as a
bloc to enable it—in the absence of special circumstances, such as the minority candidate
running unopposed—usually to defeat the minority’s preferred candidate.10

7 42 U.S.C. §§1973, 1973b(f).
8 42 U.S.C. §1973(b).
9 478 U.S. 30 (1986).
10 Id. at 50-51 (citation omitted). The three requirements set forth in Thornburg v. Gingles for a Section 2 claim apply
to single-member districts as well as to multi-member districts. See Growe v. Emison, 507 U.S. 25, 40-41 (1993) (“It
would be peculiar to conclude that a vote-dilution challenge to the (more dangerous) multimember district requires a
higher threshold showing than a vote-fragmentation challenge to a single-member district.”) Id. at 40.
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The Court also discussed how, under Section 2, a violation is established if based on the “totality
of the circumstances” and “as a result of the challenged practice or structure plaintiffs do not have
an equal opportunity to participate in the political processes and to elect candidates of their
choice.”11 In order to facilitate determination of the totality of the circumstances the Court listed
the following factors, which originated in the legislative history accompanying enactment of
Section 2:
1. the extent of any history of official discrimination in the state or political subdivision that
touched the right of the members of the minority group to register, to vote, or otherwise to
participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivisions is racially
polarized;
3. the extent to which the state or political subdivision has used unusually large election
districts, majority vote requirements, anti-single shot provisions, or other voting practices or
procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority group have
been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision
bear the effects of discrimination in such areas as education, employment and health, which
hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public office in
the jurisdiction.12
Requirement that Minority Group Constitute More Than 50% of
Voting Population in Single-Member District
Further interpreting the Gingles three-prong test, in Bartlett v. Strickland,13 the Supreme Court
ruled that the first prong of the test—requiring geographical compactness sufficient to constitute a
majority in a district—can only be satisfied if the minority group constitutes more than 50% of
the voting population if it were in a single-member district.14 In Bartlett, it had been argued that
Section 2 requires drawing district lines in such a manner to allow minority voters to join with
other voters to elect the minority group’s preferred candidate, even where the minority group in a
given district comprises less than 50% of the voting age population.

11 Id. at 44.
12 Id. at 36-37 (quoting S. REP. NO. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177). (“Additional factors
that in some cases have had probative value as part of plaintiffs’ evidence to establish a violation are: whether there is a
significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the
minority group [and] whether the policy underlying the state or political subdivision’s use of such voting qualification,
prerequisite to voting, or standard, practice or procedure is tenuous.”) Id.
13 556 U.S. 1 (2009).
14 See id. at 25-26.
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Rejecting that argument, the Court found that Section 2 does not grant special protection to
minority groups that need to form political coalitions in order to elect candidates of their choice.
To mandate recognition of Section 2 claims where the ability of a minority group to elect
candidates of choice relies upon “crossover” majority voters would result in “serious tension”
with the third prong of the Gingles test.15 The third prong of Gingles requires that the minority be
able to demonstrate that the majority votes sufficiently as a bloc to enable it usually to defeat
minority-preferred candidates.
Constitutional Limits Under 14th Amendment
Equal Protection Clause
Congressional redistricting plans must also conform with standards of equal protection under the
14th Amendment to the U.S. Constitution.16 According to the Supreme Court, if race is the
predominant factor in the drawing of district lines, above other traditional redistricting
considerations—including compactness, contiguity, and respect for political subdivision lines—
then a “strict scrutiny” standard of review is applied. In this context, strict scrutiny review
requires that a court determine that the state has a compelling governmental interest in creating a
majority-minority district, and that the redistricting plan is narrowly tailored to further that
compelling interest. Case law in this area demonstrates a tension between compliance with the
VRA and conformance with standards of equal protection.17
In its 2001 decision, Easley v. Cromartie (Cromartie II),18 the Supreme Court upheld the
constitutionality of the long-disputed 12th Congressional District of North Carolina against the
argument that the 47% black district was an unconstitutional racial gerrymander. In this case,
North Carolina and a group of African American voters had appealed a lower court decision
holding that the district, as redrawn by the legislature in 1997 in an attempt to cure an earlier
violation, was still unconstitutional. The Court determined that the basic question presented in
Cromartie II was whether the legislature drew the district boundaries “because of race rather than
because of political behavior (coupled with traditional, nonracial redistricting considerations).”19
In applying its earlier precedents, the Court determined that the party attacking the legislature’s
plan had the burden of proving that racial considerations are “dominant and controlling.”20
Overturning the lower court ruling, the Supreme Court held that the attacking party did not
successfully demonstrate that race—instead of politics—predominantly accounted for the way the
plan was drawn.

15 Id. at 16.
16 U.S. Const. amend. XIV, §1 (“No State shall ... deny to any person within its jurisdiction the equal protection of the
laws.”).
17 See, e.g., Shaw v. Reno (Shaw I), 509 U.S. 630, 653-57 (1993) (finding that if district lines are drawn for the purpose
of separating voters based on race, a court must apply strict scrutiny review); Miller v. Johnson, 515 U.S. 900, 912-13
(1995) (determining that strict scrutiny applies when race is predominant factor and traditional redistricting principles
have been subordinated); Bush v. Vera, 517 U.S. 952, 958-65 (1996) (finding that departing from sound principles of
redistricting defeats the claim that districts are narrowly tailored to address the effects of racial discrimination).
18 532 U.S. 234 (2001).
19 Id. at 256 (emphasis included).
20 Id. (citing Miller, 515 U.S. at 913).
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Section 4(b) of the Voting Rights Act—Invalidated
by U.S. Supreme Court in Shelby County v. Holder
In Shelby County v. Holder21 the U.S. Supreme Court invalidated Section 4(b)22 of the VRA.
Section 4(b) contained a formula prescribing which states and jurisdictions with a history of
discrimination were required to obtain federal approval or “preclearance” under Section 5 before
changing any voting law, including redistricting plans. Section 5 and the Court’s ruling in Shelby
County are discussed below.
As a result of the Court’s decision, the nine states, and jurisdictions within six states, that were
previously covered under the formula are no longer subject to the VRA’s preclearance
requirement. The covered states were: Alabama, Alaska, Arizona, Georgia, Louisiana,
Mississippi, South Carolina, Texas, and Virginia. The six states containing covered jurisdictions
were: California, Florida, Michigan, New York, North Carolina, and South Dakota.23 It does not
appear, however, that the Court’s decision affected Section 3(c) of the Act, known as the “bail in”
provision, under which jurisdictions can be ordered to obtain preclearance of voting laws if a
court finds that violations of the 14th or 15th Amendment justifying equitable relief have
occurred.24
Coverage Formula
Specifically, the formula contained in 4(b) provided that any state or political subdivision was
subject to the Section 5 preclearance requirement if: it maintained a “test or device” as a
condition for voting or registering to vote on November 1 of 1964, 1968, or 1972, and either less
than 50% of citizens of legal voting age were registered to vote or less than 50% of such citizens
voted in the presidential election held in the year in which it used such a test or device. The VRA
definition of “test or device” for the 1964 and 1968 dates that triggered coverage included
requirements of literacy, educational achievement, good moral character, or proof of
qualifications by the voucher of registered voters or others, as a prerequisite for voting or
registration. For the 1972 date that triggered coverage, the definition of “test or device” was
amended to also include the providing of any election information only in English in those states
or political subdivisions where members of a single language minority constitute more than 5% of
the citizens of voting age.
Release from Coverage
Section 4(a) of the VRA set forth a procedure whereby covered states or political subdivisions, as
defined in Section 4(b), could be released from coverage under the Section 5 preclearance
provision. Specifically, a covered jurisdiction had to demonstrate, in an action for declaratory

21 133 S. Ct. 2612 (2013).
22 42 U.S.C. §1973b.
23 28 C.F.R. pt. 51, app. (2012), “Jurisdictions Covered Under Section 4(b) of the Voting Rights Act, As Amended.”
24 42 U.S.C. § 1973a(c). For further discussion of the “bail in” provision, see CRS Report WSLG607, What is the “Bail
In” Provision of the Voting Rights Act?, by L. Paige Whitaker.
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judgment in the U.S. District Court for the District of Columbia, that during the previous 10 years
and during the pendency of the action:
(A) “no ... test or device has been used within such State or political subdivision for the
purpose or with the effect of denying or abridging the right to vote on account of race or
color”;
(B) “no final judgment of any court of the United States, other than the denial of declaratory
judgment under this section, has determined that denials or abridgements of the rights to vote
on account of race or color have occurred anywhere in the territory of such State or political
subdivision”;
(C) “no Federal examiners or observers under this Act have been assigned to such State or
political subdivision”;
(D) “such State or political subdivision and all governmental units within its territory have
complied with section 5 of this Act, including compliance with the requirement that no
change covered by section 5 has been enforced without preclearance under section 5, and
have repealed all changes covered by section 5 to which the Attorney General has
successfully objected or as to which the United States District Court for the District of
Columbia has denied a declaratory judgment”;
(E) “the Attorney General has not interposed any objection (that has not been overturned by
a final judgment of a court) and no declaratory judgment has been denied under section 5,
with respect to any submission by or on behalf of the plaintiff or any governmental unit
within its territory under section 5, and no such submissions or declaratory judgment actions
are pending; and
(F) “such State or political subdivision and all governmental units within its territory—(i)
have eliminated voting procedures and methods of election which inhibit or dilute equal
access to the electoral process; (ii) have engaged in constructive efforts to eliminate
intimidation and harassment of persons exercising rights protected under this Act; and (iii)
have engaged in other constructive efforts, such as expanded opportunity for convenient
registration and voting for every person of voting age and the appointment of minority
persons as election officials throughout the jurisdiction and at all stages of the election and
registration process.”25
Section 5 of the Voting Rights Act
Section 5 of the VRA was enacted to eliminate possible future denials or abridgements of the
right to vote. It required prior approval, known as “preclearance,” of a proposed change to any
voting qualification, standard, practice, or procedure, including congressional redistricting plans.
It applied only to those states or political subdivisions that, as specified by the formula
invalidated by the Supreme Court in Shelby County, were considered “covered” jurisdictions.

25 42 U.S.C. §1973b(a)(1)(A)-(F). A U.S. Department of Justice webpage contains a list of jurisdictions that were once
subject to the preclearance requirement, but successfully obtained a declaratory judgment and were released from
coverage. See http://www.justice.gov/crt/about/vot/misc/sec_4.php#bailout. For example, in March 2013, 10 political
subdivisions in New Hampshire were released from coverage; see consent judgment and decree at
http://www.justice.gov/crt/about/vot/misc/nh_cd.pdf.
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Although the Court invalidated only the coverage formula in Section 4, by extension, Section 5
has been rendered currently inoperable.
Before implementing a change to “any voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting”26—which includes congressional redistricting
plans—Section 5 required a covered jurisdiction to obtain “preclearance” approval for the
proposed change. Covered jurisdictions could seek preclearance from either the U.S. Attorney
General or the U.S. District Court for the District of Columbia.27 In order to be granted
preclearance, the covered jurisdiction had the burden of proving that the proposed voting change
“neither has the purpose nor will have the effect of denying or abridging the right to vote on
account of race or color,” or membership in a language minority group.”28 Moreover, as amended
in 2006, the statute expressly provided that its purpose was “to protect the ability of such citizens
to elect their preferred candidates of choice.”29
Unlike certain other provisions of the VRA, the preclearance requirements were enacted to be
temporary. From its original date of enactment in 1965, and with each subsequent reauthorization
in 1970, 1975, 1982, and 2006, the preclearance requirements have contained expiration dates. As
a result of the 2006 amendments to the act, the preclearance requirements were scheduled to
expire in 2031.30
“Effect” Test
According to the Supreme Court, a redistricting plan would be determined to have a
discriminatory effect—and accordingly, preclearance would be denied—if it would lead to
retrogression in minority voting strength.31 In Beer v. U.S.,32 the Court found that a plan that
increased the number of African American city council majority districts from one to two
enhanced the voting strength of racial minorities and therefore, could not have the effect of
diluting voting rights due to race under Section 5.33 According to the Court, Section 5 is intended
to prevent changes in voting procedures that would lead to a diminishing in the ability of racial
minorities to exercise their right to vote effectively.34 Clarifying the retrogression standard, in

26 42 U.S.C. §1973c(b)
27 42 U.S.C. §1973c(a).
28 42 U.S.C. §1973c (emphasis added). See also 28 C.F.R. §51.52(a).
29 42 U.S.C. §1973c(d).
30 P.L. 109-246, 120 Stat. 577 (2006), codified at 42 U.S.C. 1973b(a)(8) (“The provisions of this section shall expire at
the end of the twenty-five year period following the effective date of the amendments made by the Fannie Lou Hamer,
Rosa Parks, Coretta Scott King, Cesar E. Chavez, Barbara C. Jordan, William C. Velasquez, and Dr. Hector P. Garcia
Voting Rights Act Reauthorization and Amendments of 2006 [effective July 27, 2006].”).
31 For redistricting plans submitted to the Attorney General for administrative review, Department of Justice regulations
provide that a change affecting voting is considered to have a discriminatory effect if it will lead to retrogression in the
position of members of a racial or language minority group, that is, members of such groups will be “worse off than
they had been before the change.” In order to determine retrogressive effect, a proposed redistricting plan will be
compared to a “benchmark” plan. The “benchmark” plan against which a proposed plan is compared is the most recent
legally enforceable redistricting plan in force or effect at the time of the submission. 28 C.F.R. §51.54(b),(c) (2011);
http://www.justice.gov/crt/about/vot/sec_5/sec5guidance2011.pdf.
32 425 U.S. 130 (1976).
33 See id. at 141.
34 Id.
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City of Lockhart v. U.S.35 the Court approved an electoral change that, although it did not improve
minority voting strength, did not result in retrogression. Invoking its decision in Beer, the Court
found that if a new redistricting plan does not diminish the voting strength of African Americans,
it would be entitled to preclearance under Section 5.36 Likewise, in Reno v. Bossier Parish School
Board (Bossier Parish I),37 the Supreme Court affirmed the retrogression standard for Section 5
preclearance when it refused to replace it with a standard of racial vote dilution, which is the
standard contained in Section 2 of the VRA. According to the Court, “a violation of § 2 is not
grounds in and of itself for denying preclearance under § 5.”38
When it amended Section 5 in 2006, Congress added a provision expressly stating that its purpose
was “to protect the ability of such citizens to elect their preferred candidates of choice.”39
According to the legislative history, this amendment was made to address a 2003 Supreme Court
decision, Georgia v. Ashcroft.40 In Georgia, a Senate Report noted, the Court determined that
preclearance would be permitted under Section 5 in cases where majority-minority districts, in
which minorities had the ability to elect a candidate of choice, were replaced with “influence
districts,” in which minorities could impact an election, but not necessarily play a decisive role.
Calling the standard established by the Court in Georgia, “ambiguous,” the Senate Report
indicated that the intent of the amendment was to restore Section 5 to the “workable” standard
that the Court espoused in Beer.41 In Beer, the Court inquired whether, under the proposed
redistricting plan, the ability of minority groups to elect candidates of choice is diminished.42
“Purpose” Test
Congress also amended Section 5 of the VRA in 2006 with the intent of expanding the definition
of “purpose.” Specifically, the law was changed to provide that “[t]he term ‘purpose’ ... shall
include any discriminatory purpose.”43 The legislative history indicates that this amendment was
made in response to the 2000 decision in Reno v. Bossier Parish School Board (Bossier Parish
II)44 where the Supreme Court found that Ҥ 5 does not prohibit preclearance of a redistricting
plan enacted with a discriminatory but nonretrogressive purpose.”45 A Senate report
accompanying the legislation to amend Section 5 observed that under the standard articulated in
Bossier Parish II, preclearance could be granted to redistricting plans enacted with a
discriminatory purpose, so long as the purpose was only to perpetuate unconstitutional
circumstances, and not to make them worse.46

35 460 U.S. 125 (1983).
36 See id. at 135-136.
37 520 U.S. 471 (1997).
38 Bossier Parish I, 520 U.S. at 483. The Court went on to say that in some circumstances, however, evidence of racial
vote dilution in violation of Section 2 may be relevant to establishing the jurisdiction’s intent to cause retrogression to
minority voting strength in violation of Section 5. See id. at 486.
39 42 U.S.C. §1973c(d).
40 539 U.S. 461 (2003).
41 S. REP. NO. 109-295, at 18 (2006).
42 Id. (quoting Beer, 425 U.S. at 141 (1976)).
43 P.L. 109-246, 120 Stat. 577 (2006), codified at 42 U.S.C. §1973c(c) (emphasis added).
44 528 U.S. 320 (2000).
45 Id. at 341.
46 S. REP. NO. 109-295, at 16 (2006) (quoting Pamela S. Karlan, Responses to Written Questions from Sen. Kennedy
(continued...)
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According to the Senate report,
The Supreme Court’s decision in Bossier Parish II has created a strange loophole in the law:
it is possible that the Justice Department or federal court could be required to approve an
unconstitutional voting practice ... [and the] federal government should not be giving its seal
of approval to practices that violate the Constitution. Under this amendment, which forbids
voting changes motivated by ‘any discriminatory purpose,’ it will not do so.47
Shelby County v. Holder: Coverage Formula Held
Unconstitutional
By a 5 to 4 vote, in Shelby County v. Holder,48 the U.S. Supreme Court decided that Congress’
decision in 2006 to reauthorize the Section 5 preclearance requirement, without modifying the
coverage formula in Section 4(b), was unconstitutional. The Court determined that the coverage
formula’s application to certain states and jurisdictions departed from the principle of equal
sovereignty among the states without justification in light of current conditions. According to the
Court, the coverage formula was “based on 40-year old facts having no logical relation to the
present day.”49 Therefore, it concluded that the coverage formula could no longer be used as a
basis for subjecting certain states and jurisdictions to the Section 5 preclearance requirement.
Background
Shelby County appears against a historical backdrop of cases in which the Supreme Court
repeatedly upheld the constitutionality of the Section 5 preclearance regime. Following enactment
of the VRA in 1965, in South Carolina v. Katzenbach,50 the Supreme Court upheld Section 5’s
constitutionality. Rejecting an argument that it supplants powers that are reserved to the states, the
Court found the law to be “a valid means for carrying out the commands of the Fifteenth
Amendment.”51 Following the 1975 reauthorization of Section 5, in City of Rome v. United
States,52 the Court reaffirmed its holding in Katzenbach, and likewise upheld its constitutionality.
Similarly, in Lopez v. Monterey County,53 the Court upheld the constitutionality of Section 5 after
its 1982 reauthorization, finding that although “the Voting Rights Act, by its nature, intrudes on
state sovereignty,” nonetheless, “[t]he Fifteenth Amendment permits this intrusion.”54
More recently, however, the Supreme Court had expressed concerns with the constitutionality of
Section 5. In the wake of the 2006 reauthorization and amendments to Section 5, a municipal

(...continued)
(submitted for May 16, 2006 hearing)).
47 Id. at 15.
48 133 S. Ct. 2612 (2013).
49 Id. at 2629.
50 383 U.S. 301 (1966).
51 Id. at 337.
52 446 U.S. 156, 183 (1980).
53 525 U.S. 266 (1999).
54 Id. at 284-85.
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utility district in Texas filed suit asking to be released from Section 5 preclearance requirements.
In the alternative, the utility district challenged the law’s constitutionality, arguing that Congress
had exceeded its enforcement power under the 15th Amendment. In the resulting 2009 decision of
Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder,55 while the
Supreme Court did not answer the question of Section 5’s constitutionality, it did caution that the
VRA’s preclearance requirement and coverage formula “raise serious constitutional questions.”56
On the one hand, the Court acknowledged that while some of the conditions it had relied upon in
upholding Section 5 in Katzenbach and City of Rome had improved, such improvements may be
insufficient, thereby continuing to justify the need for preclearance. On the other hand, the Court
announced that the law “imposes current burdens and must be justified by current needs.”57 By
deciding that the utility district was eligible to be released from coverage, in NAMUDNO, the
Court avoided the constitutional question.58 In an early 2012 decision on redistricting, the
Supreme Court reiterated its observation from NAMUDNO that Section 5’s intrusion on state
sovereignty “raises serious constitutional questions.”59
Supreme Court Decision
Building on concerns it had articulated in recent cases, in June 2013, the Supreme Court issued its
decision in Shelby County v. Holder,60 holding that the coverage formula in Section 4(b) was
unconstitutional. Authored by Chief Justice Roberts, the majority opinion began by invoking its
determination in NAMUDNO that the preclearance regime imposes current burdens that must be
justified by current needs, and that departing from the fundamental principle of equal sovereignty
among the states requires a showing that disparate geographic imposition of the preclearance
requirement must be “sufficiently related to the problem it targets.”61
Contrasting voting conditions in 1966 with the current day, the Court observed that when it
upheld the constitutionality of the preclearance regime, it was justified by the presence of
extensive racial discrimination in voting. At that time, the Court said, the coverage formula made
sense because it tailored the preclearance requirement to those geographical areas where there
was evidence of voting discrimination. Therefore, the Court had concluded that the coverage
formula was “rational in both practice and theory.”62
Almost 50 years later, however, the Court observed that “things have changed dramatically,”
largely due to the effectiveness of the Voting Rights Act.63 According to the Court, continuing to
base coverage on locales where literacy tests were once imposed, and on low voter registration
and turnout statistics from the 1960s and early 1970s, does not make sense. Characterizing the

55 129 S.Ct. 2504 (2009).
56 Id. at 2513.
57 Id. at 2512. (“The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for
preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is
considerable evidence that it fails to account for current political conditions.”) Id.
58 See id. at 2513.
59 Perry v. Perez, 132 S.Ct. 934, 942 (2012).
60 133 S. Ct. 2612 (2013).
61 Id. at 2622.
62 Id. at 2625.
63 Id. at 2627.
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coverage formula as relying on “decades-old data and eradicated practices” that do not reflect
current conditions, the Court pointed out that literacy tests have been banned for over 40 years,
and that voter registration and turnout statistics in covered jurisdictions now approach parity with
non-covered jurisdictions.64 While such factors could appropriately be used to divide the country
in 1965, the Court in Shelby County observed that the country is no longer divided along those
lines. In order for Congress to divide the states in such a manner that some are subjected to
preclearance, while others are not, the Court ruled that it must do so on a basis that makes sense
“in light of current conditions.”65
Writing for the dissent, Justice Ginsburg criticized the Court’s opinion, arguing that the current
coverage formula still accurately identifies the jurisdictions with the worst conditions of voting
discrimination, and therefore, Congress should not need to redraft it. The dissent further
maintained that second-generation barriers to minority voting rights—such as racial
gerrymandering, the redrawing of legislative districts in order to segregate the races for the
purposes of voting, and the adoption of at-large voting—have emerged in the covered
jurisdictions, thereby continuing to necessitate preclearance.66 The dissent concluded that the
2006 reauthorization of the VRA satisfied the constitutional standard that Congress may choose
any means “appropriate” and “plainly adapted to” a legitimate constitutional end, and therefore,
the Court should have deferred to Congress.67 Justice Thomas wrote a concurrence stating that for
the same reasons articulated in the majority opinion, in addition to the coverage formula, he also
would have invalidated Section 5.68
Implications for Legislation to Reinstate Section 5 Preclearance
As a result of the Supreme Court’s decision to invalidate the coverage formula, the Section 5
preclearance requirement has been rendered inoperable. Should Congress decide to draft a new
coverage formula in order to reinstate Section 5 preclearance, the Court cautioned it to ground the
formula in current voting conditions, and not rely on the past. The Court further emphasized that
any formula that distinguishes among the states must be “sufficiently related” to the problem the
law seeks to address.69 The Shelby County Court’s inquiry into whether the coverage formula
comports with the principle of equal sovereignty among the states seems to represent a shift from
its earlier decisions upholding Section 5 where it considered the extent to which the preclearance
requirement infringed on state sovereignty.
Congressional Redistricting Legislation
The following provides an overview of selected legislation that would establish additional
requirements and standards for congressional redistricting.

64 Id.
65 Id. at 2629.
66 See id. at 2642.
67 Id. at 2639 (quoting McCulloch v. Maryland, 17 U.S. 316, 421 (1819)).
68 See id. at 2631-32.
69 Id. at 2627.
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For discussion of the constitutionality of redistricting legislation, see CRS Report RS22628,
Congressional Redistricting: The Constitutionality of Creating an At-Large District, by L. Paige
Whitaker, and for discussion of the constitutionality of mid-decade redistricting, see CRS Report
RS22479, Congressional Redistricting: A Legal Analysis of the Supreme Court Ruling in League
of United Latin American Citizens (LULAC) v. Perry, by L. Paige Whitaker. For discussion of the
constitutionality of federal election standards generally, see CRS Report RL30747, Congressional
Authority to Standardize National Election Procedures, by Kenneth R. Thomas.
113th Congress
• H.R. 223 and H.R. 278 (113th Congress), the “John Tanner Fairness and
Independence in Redistricting Act,” would prohibit the states from conducting
more than one congressional redistricting following a decennial census and
apportionment, unless a state is ordered by a court to do so in order to comply
with the Constitution or to enforce the VRA, and would require the states to
conduct redistricting through independent commissions.
• H.R. 337 (113th Congress), the “Redistricting Transparency Act of 2013,” would
require the states to conduct congressional redistricting in such a manner that the
public is informed about proposed congressional redistricting plans through a
public Internet site, and has the opportunity to participate in developing
congressional redistricting plans before they are adopted.
• H.R. 2756 (113th Congress), the “Redistricting and Voter Protection Act of 2013,”
would require any state, after enacting a congressional redistricting plan
following a decennial census, that enacts a subsequent redistricting plan prior to
the next decennial census, to obtain a declaratory judgment or preclearance under
Section 5 of the VRA prior to the plan taking effect.
112th Congress
• H.R. 419 (112th Congress), the “Redistricting Transparency Act of 2011,” would
require the states to conduct congressional redistricting in such a manner that the
public is informed about proposed congressional redistricting plans through a
public Internet site, and has the opportunity to participate in developing
congressional redistricting plans before they are adopted.
• H.R. 453 (112th Congress), the “John Tanner Fairness and Independence in
Redistricting Act,” would prohibit the states from conducting more than one
congressional redistricting following a decennial census and apportionment,
unless a state is ordered by a court to do so in order to comply with the
Constitution or to enforce the VRA, would require the states to conduct
redistricting through independent commissions.
• H.R. 590 (112th Congress), the “Redistricting Reform Act of 2011,” would
prohibit the states from conducting more than one congressional redistricting
following a decennial census and apportionment, unless a state is ordered by a
court to do so in order to comply with the Constitution or to enforce the VRA,
and would require the states to conduct congressional redistricting through
independent commissions.
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• H.R. 3846 (112th Congress), the “National Commission for Independent
Redistricting Act of 2012,” would establish a National Commission for
Independent Redistricting that would prepare congressional redistricting plans for
all states and hold meetings open to the public, would require congressional
redistricting to be conducted in accordance with the Commission’s plan, and
would prohibit the states from conducting more than one congressional
redistricting following a decennial census and apportionment, unless a state is
ordered by a court to do so in order to comply with the Constitution or to enforce
the VRA.
• S. 694 (112th Congress), the “Fairness and Independence in Redistricting Act,”
would prohibit the states from carrying out more than one congressional
redistricting following a decennial census and apportionment, unless a state is
ordered by a court to do so in order to comply with the Constitution or to enforce
the VRA, and would require the states to conduct redistricting through
independent commissions.

Author Contact Information

L. Paige Whitaker

Legislative Attorney
lwhitaker@crs.loc.gov, 7-5477


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