Section 4 is — or was, before the Shelby County v. Holder decision — a key part of the Voting Rights Act, because it provided a formula for the federal government to use in identifying jurisdictions with problematic histories of racial discrimination.
As of 2013, this formula classified Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, as well as parts of California, Florida, Michigan, New York, North Carolina, and South Dakota, as qualifying.
However, that formula was struck down by the Supreme Court’s decision in Shelby County v. Holder and is no longer law. That’s why a lot of the contemporary discussion you’ll hear about the fight over voting rights has to do with how election laws with potentially discriminatory impacts can be kept in check now that this section is disabled. The Shelby decision left room for Congress to update and rewrite the formula that determines covered jurisdictions, but Congress hasn’t done so yet.
Here’s how Section 4 interacts with the other key sections of the Voting Rights Act: 2, 3 and 5:
Section 5 of the VRA provides that any changes to voting laws in the jurisdictions covered by Section 4’s formula can’t be enforced until they are approved by either a three-judge court in the District of Columbia or by the attorney general of the United States — a process known as “preclearance” — to ensure they do not have a harmful impact on minority voters.
It also gives the attorney general the power to send federal officials into covered jurisdictions to check for violations of the act.
However, when the coverage formula in Section 4 was struck down by Shelby, Section 5 was effectively disabled as well, because it can’t work without a list of jurisdictions that are covered.
Section 2 sets out the law’s basic purpose and prohibits any voting practice or procedure that discriminates on the basis of race, color, or, in certain cases, language. It also allows the federal government or other actors to challenge discriminatory laws in court. However, it can only be used to challenge laws that already exist. This section wasn’t affected by Shelby because it doesn’t rely on the Section 4 coverage formula, so it can still be used.
Section 3 — sometimes known as the “bail-in” provision — allows lawsuits from citizens asking a judge to require a state or other jurisdiction to get preclearance from the federal government, as described in Section 5. The Shelby court didn’t strike down Section 3, so it’s still an available tool for lawyers who want to use the VRA to challenge election laws.
