Equal Sovereignty Doctrine

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The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In two recent voting rights cases, the Supreme Court has invoked “the fundamental principle of equal sovereignty” as a limitation on congressional power.1 Because the United States “was and is a union of states, equal in power, dignity and authority,” 2 the equal sovereignty principle limits Congress’s ability to enact legislation that subjects different states to unequal burdens, at least without a sufficient justification.3

Whether the equal sovereignty principle is based on the Tenth Amendment, or some other constitutional provision, is unclear from the Court’s cases. Although the Constitution explicitly mandates equal treatment of states in some particular contexts,4 no provision of the Constitution explicitly requires Congress to treat states equally as a general matter.5 In cases involving the admission of new states, the Supreme Court in the nineteenth century developed the “equal footing” doctrine,6 which generally requires that Congress admit new states on equal terms with the original states.7 It thus forbids Congress from imposing “restrictions upon a new state which deprive it of equality with other members of the Union.” 8 Until recently, the applicability of that doctrine outside the state admission context was questionable, as South Carolina v. Katzenbach observed that “[t]he doctrine of the equality of States . . . applies only to the terms upon which States are admitted to the Union.” 9

In Northwest Austin Municipal Utility District Number One v. Holder10 and Shelby County v. Holder,11 however, the Court applied the equal sovereignty principle more broadly. Both cases concerned the constitutionality of Sections 4 and 5 of the Voting Rights Act of 1965 (VRA). To remedy the racial discrimination in voting endemic during the Jim Crow era, Section 4 of the VRA contained a “coverage formula” identifying jurisdictions with a history of racial discrimination against voters, while Section 5 required those jurisdictions to obtain “preclearance” from the Department of Justice or a federal court before changing their voting procedures.12 As a result, jurisdictions covered by Section 4 were subject to more stringent requirements when seeking to change their voting laws, compared to other states.

Although the Court upheld the constitutionality of this arrangement in Katzenbach,13 Northwest Austin observed that the VRA’s preclearance requirements and coverage formula impose “substantial federalism costs” 14 that have become tougher to justify given improved conditions since 1965.15 The Court observed that the coverage formula, by differentiating between the states, departs from “the fundamental principle of equal sovereignty,” and raises “serious constitutional questions.” 16 Ultimately, however, the Court resolved Northwest Austin on statutory grounds.17

Four years later, Shelby County resolved the constitutional question left open in Northwest Austin, relying on the equal sovereignty principle to strike down the VRA’s coverage formula as unconstitutional.18 Under the test used in Shelby County, “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” 19 The Court observed that in the nearly fifty years since the VRA was first upheld in Katzenbach, “things have changed dramatically,” pointing to increases in African-American voter registration rates and turnout in covered jurisdictions.20 As a result, and in contrast to the “exceptional conditions” present in Katzenbach, current conditions did not justify applying the preclearance formula to only certain states and counties.21

As the Court has not decided an equal sovereignty challenge since Shelby County, it remains unclear whether and how the doctrine will apply outside of the voting rights context.

1: Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009); Shelby Cnty. v. Holder, 570 U.S. 529, 544 (2013).
2: Shelby Cnty., 570 U.S. at 544 (citing Coyle v. Smith, 221 U.S. 559, 567 (1911)).
3: Id. at 542 ( “[A] departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” (quoting Nw. Austin, 557 U.S. at 203)).
4: See, e.g., U.S. Const. art. I, § 3, cl. 1 ( “The Senate of the United States shall be composed of two Senators from each State . . . .” ); U.S. Const. art. I, § 8, cl. 1 (requiring “Duties, Imposts, and Excises” to be “uniform throughout the United States” ); U.S. Const. art. I, § 8, cl. 4 (requiring “an uniform Rule of Naturalization” and “uniform Laws on the subject of Bankruptcies throughout the United States” ); U.S. Const. art. I, § 9, cl. 6 ( “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.” ).
5: See generally Leah M. Litman, Inventing Equal Sovereignty, 114 Mich. L. Rev. 1207, 1230–32 (2016); Thomas Colby, In Defense of the Equal Sovereignty Principle, 65 Duke L.J. 1087, 1099 (2016).
6: See ArtIV.S3.C1.1 Overview of Admissions (New States) Clause.
7: Lessee of Pollard v. Hagan, 44 U.S. 212, 223 (1845).
8: Coyle v. Smith, 221 U.S. 559, 567 (1911).
9: South Carolina v. Katzenbach, 383 U.S. 301, 328–29 (1966) (citing Coyle, 221 U.S. 559).
10: 557 U.S. 193, 203 (2009).
11: 570 U.S. 529, 544 (2013).
12: Id. at 537–38.
13: 383 U.S. at 328–83; accord Georgia v. United States, 411 U.S. 526 (1973); City of Rome v. United States, 446 U.S. 156 (1980); Lopez v. Monterey Cnty., 525 U.S. 266 (1999).
14: Nw. Austin, 557 U.S. at 202 (quoting Lopez, 525 U.S. at 282).
15: Id. at 202 ( “Things have changed in the South.” ), 203 ( “[T]he 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.” ).
16: Id. at 203–04.
17: Id. at 206–11.
18: Shelby Cnty. v. Holder, 570 U.S. 529, 557 (2013).
19: Id. at 542 (quoting Nw. Austin, 557 U.S. at 203).
20: Id. at 547–48.
21: Id. at 557.