In June of 2013, Shelby County, Ala. v. Holder held Section 4(b) of the Voting Rights Act of 1965 to be unconstitutional. Section 4(b) outlined the circumstances under which a state would be subject to preclearance under Section 4(a) of the Act. As reauthorized in 2006, Section 4(b) subjected all states to preclearance who had used any sort of test as a precondition for voting in the mid 60’s and 70’s, or who had less than 50% voter registration or turnout during those same years. Those states then had to “preclear” any change to their electoral system with either the Department of Justice or the United States District Court for the District of Columbia. Either could reject the changes if they would cause any “retrogression” in the political opportunity of minority groups.

The Shelby County Court rooted its decision in a concern for the “equal sovereignty” of the states, explaining that when a federal law infringes on a power normally held by the states—even if that infringement is rightful—any application of the law that is geographically uneven is an extraordinary occurrence. The method for determining which states are unevenly impacted, and the extent of that impact, must then be sufficiently related to the law’s purpose. In the case of Section 4(b), the established standards for determining preclearance were drawn from voting rights violations in the 60’s and 70’s, and had no rational relationship to today’s less overt, “second generation” vote suppression strategies.

This extraordinary invocation of equal sovereignty created a new doctrine almost entirely from thin air. Although a few Supreme Court cases contained the term, they, and the case on which the Court rested its decision, dealt primarily with the admission of states into the union, rather than the uneven application of federal law. Thanks to this novelty, and the Court’s failure to articulate the doctrine’s parameters, it was not clear what ramifications the emerging concept of equal sovereignty would have.

Harvard Professor Leah M. Litman posited, in a 2016 article, that the Shelby County conception of equal sovereignty is only triggered by federal action that lessens the dignity of a single state or a limited number of states. She theorizes that only the sort of morally-blameworthy state action that is constrained by the Civil War amendments carries the stigma necessary to raise equal sovereignty concerns. States are accustomed to having laws preempted by federal regulation, and there is rarely moral condemnation involved when policy goals conflict, but the Civil War amendments arguably exist to remedy immoral—not just unwise—state action. Adjudicating a lone state under those amendments could be seen as labelling that state as a singularly racist actor, rather than a cog in a racist system. This preoccupation with the stigma that the Civil War amendments might inflict is reflective of the Court’s movement away from an anti-subordination-oriented view of the amendments toward one that is focused on anti-classification goals.

To those who take an anti-classification approach, the 14th and 15th Amendments do not exist to unmake racial hierarchy, but simply to prevent the indignity of racial classification and create a “color blind” world. That concern with ‘indignity’ forms the basis for Professor Litman’s hypothesis, and if she is correct, only humiliating moral judgments—like the appellation ‘racist’—trigger the equal sovereignty doctrine. Since few of the conflicts between states and the federal government strike at a state’s dignity quite the way that accusations of racism do, the equal sovereignty doctrine serves primarily as a check on the 14th and 15th Amendments. Most particularly, it runs up against the anti-subordinative power of those amendments to reach, through legislation, those actions that are facially race-neutral, but which have disparate racial impacts. Facially race-neutral laws or policies typically provide insufficient evidence of a state’s racist intentions to justify the ‘extreme’ stigma that might accompany application of the Civil War amendments.

Five years after the fact, the Supreme Court has yet to address the equal sovereignty doctrine further, but parties’ attempts to litigate the doctrine and lower courts’ treatment of those cases are enlightening. Since it’s an election year and Shelby County’s quinquennial anniversary, it seems like a good time to take a look at what Chief Justice Robert’s equal sovereignty doctrine has wrought.


Medical Marijuana


The vast majority of claims that have been advanced under the doctrine of equal sovereignty were brought by individuals trying to escape liability for federal marijuana charges. From 2013-2016, defendants challenged the federal government’s disparate enforcement of marijuana laws under the Cole Memorandum (a memo urging US Attorneys not to pursue charges against those arrested for owning or selling medical marijuana in states that legalized the practice) as a violation of the equal sovereignty of the states. Specifically, they argue that because marijuana is categorized as a schedule 1 drug, but US Attorneys were discouraged from charging crimes that involve the drug in states that had de-criminalized marijuana in some capacity, there was no longer a rational relationship between the purpose of the law and the geographic region in which It was enforced. District courts avoided this recurring defense in a few ways:

  • The Cole Memo is not a statute, and does not exempt states from the ambit of statutory law. The Controlled Substances Act (“CSA”) is the controlling statute, and that applies equally to every state. The Cole Memo simply informs the discretion exercised by US Attorneys—discretion that they are empowered to exercise in every case, if they so choose.
  • Equal sovereignty is a doctrine that is reserved for “sensitive areas of state and local policymaking,” such as the regulation of elections, whereas the CSA is merely a routine exercise of the federal government’s power to criminalize certain behavior.
  • The CSA targets individuals, rather than the conduct or authority of the states themselves, and so does not fall into the narrow band of federal action that Shelby County.
  • Marijuana is regulated by a legitimate exercise of Congress’ commerce power, and when the federal government regulates interstate commerce, there is no further 10th Amendment analysis necessary. U.S. v. Olea, Not Reported in Fed. Supp., 2016 WL 8730167.

Defendants’ consistent failure to leverage the equal sovereignty doctrine in these cases seems to reflect a consensus that there is nothing shameful about federal preemption, or even inconsistent administration of federal law that does not regulate state action itself.


Medicaid Standards


The state of Maine attempted to amend their state Medicaid plan to drop coverage for low income 19- and 20-year-olds. The Secretary of Health and Human Services disapproved the amendment because it violated the conditions imposed on Maine by the Affordable Care Act. Maine argued that the applicable ACA provision violated its equal sovereignty by preventing Maine from “designing its own Medicaid laws in ways that many of its sister states remain[ed] free to do.” The First Circuit rejected this argument because the ACA applied the same rule to each state: freezing that state’s eligibility standards in whatever form they took on March 23, 2010. Additionally, the ACA provision did not intrude into an area of authority traditionally occupied by the states because it governed Maine’s administration of a federal program, primarily funded by the federal government. Finally, the specifics of the regulation were drawn directly from a contemporary problem: keeping indigent young people enrolled in Medicaid. This appears to be nothing more than Maine’s weak attempt to stretch the equal sovereignty doctrine, since there was no meaningful classification among the states.


Trump Emoluments Lawsuit


The District of Columbia leveraged the equal sovereignty doctrine to support their argument that the District had suffered an injury-in-fact from the president’s alleged violation of the Domestic Emoluments Clause. Because DC was forced to choose between “granting the Trump Organization’s requests for special concessions, exemptions, waivers, and the like . . . and . . . denying such requests and risk being placed at a disadvantage vis-à-vis other States,” the District Court found that the facts alleged sufficiently compromised the District’s quasi-sovereignty to grant standing. This rare acceptance of the doctrine by a lower court provides substantial support for Professor Litman’s hypothesis, since a state that is coerced into prostrating itself before a private corporation is a state with very little dignity. At the same time, this formulation of equal sovereignty does more than serve as a bulwark against federal legislation pursuant to the Civil War amendments.


Sports Gambling


Early in the life of Murphy v. National Collegiate Athletic Ass’n, plaintiffs grounded their arguments against the Professional and Amateur Sports Protection Act (“PASPA”) in considerations of equal sovereignty. PASPA was a federal statute requiring states to pass anti-sports gambling laws, but contained a carveout for Nevada because of that state’s long history of legalized gambling. The Third Circuit disagreed, holding that regulating gambling via the Commerce Clause permitted congress to enact laws that effected states disparately. The court found that Shelby County did not apply outside “the context of sensitive areas of state and local policymaking.” Furthermore, the Third Circuit thought it permissible that PASPA treated one state better than others, rather than punishing a minority of jurisdictions.

When Murphy finally made it to the Supreme Court earlier this year, except for one footnote, the parties did not brief the equal sovereignty issue, relying instead on the anti-commandeering doctrine to win their case. Earlier arguments relied heavily on the equal sovereignty doctrine, however, and the choice to abandon it raises unanswered questions about the litigants’ strategy. If the lower court decisions rejecting equal sovereignty are at all indicative, however, the federal government forcing some states but not others to enact legislation is not per se undignified enough to trigger the doctrine of equal sovereignty. That leaves two differences between the actions mandated by PASPA and those mandated by the Voting Rights Act. First, PASPA only required that legislation be passed, not that the legislation be turned over to the Department of Justice for approval first. While this level of micromanagement could be demeaning, it is not clear how it ties to the court’s concern for “sensitive areas of state and local policymaking.” The second difference, of course, is the subject matter: sports gambling is a relatively values-neutral issue. Unlike the reputation that accompanied a state’s preclearance status under the Voting Right Act, it is a subject on which reasonable people might weigh the equities and come to different conclusions.


Shelby County’s reach remains uncertain after five years, and the impact that it will have on civil rights beyond the obvious voting rights context is not yet realized. Despite a flurry of creative litigation, the pattern of lower court decisions—particularly those giving carte blanch to any traditionally valid exercise of congress’ commerce power—seem to reflect Professor Litman’s hypothesis that the doctrine of equal sovereignty will be construed to permit all but the most heinous indignities. Equal sovereignty as a defense against anti-subordination applications of the Civil War amendments continues to loom, and in some ways rings truer two years after the article was published, when accusations of racism in the public sphere are often framed as more appalling than the actions that prompted them.