concurring in the judgment:
I agree that no preliminary injunction should issue. The plaintiffs have not established a substantial likelihood of success on the merits. The State’s enforcement of § 9-19-17 may in fact comply with federal law.
I write separately, though, to note uncertainty in the reach of Shelby County. The panel concludes that after Shelby County, courts cannot enforce § 5 at all. But another possible interpretation of Shelby County is that courts cannot enforce § 5 for voting changes enacted after July 27, 2006, the date the Voting Rights Act was reauthorized with an unconstitutional coverage formula. If that is the case, § 5 still applies to voting changes enacted before 2006, including § 919-17.
A few considerations have shaped this view.
First, the text of Shelby County suggests that it applies prospectively. The Supreme Court framed the question not as whether the Act’s “extraordinary measures” were previously constitutional — they were — but instead whether they “continue to satisfy constitutional requirements.” Shelby Cnty., 133 S.Ct. at 2619 (emphasis added). The coverage formula was invalidated “in light of current conditions,” not conditions as they were in 1965 or 1980. Id. at 2627. And the ultimate holding was that the coverage formula “can no longer be used as a basis for subjecting jurisdictions to preclearance.” Id. at 2631 (emphasis added).
This language is forward-looking. The opinion acknowledged the many benefits the Voting Rights Act provided to our society because it did not wish to disturb them.1 It simply held that preclearance was no longer necessary for future changes. Other courts agree. See, e.g., Page v. Virginia State Bd. of Elections, No. 3:13-CV-678, 2015 WL 3604029, at *4 (E.D.Va. June 5, 2015) (three-judge court) (holding, in case filed after Shelby County, that “Section 5’s requirements of review and preclearance for covered areas no longer apply to Virginia with respect to future changes to its voting and election laws.”); Harris v. Arizona Indep. Redistricting Comm’n, 993 F.Supp.2d 1042, 1076 (D.Ariz.2014) (“Nothing in Shelby County suggests that all those maps [drawn after the 2010 census] are now invalid, and we are aware of no court that has reached such a conclusion, despite the concern expressed in the dissenting opinion that leaving the maps in place would give continuing force to Section 5.”).
The Mississippi Attorney General’s Office may also agree. When the Office was consulted in 2013 on the reach of Shelby County, it issued a formal opinion stating the following:
A retroactive application of Shelby County to give immediate effect to legislation objected to prior to Shelby County and commonly considered to be dead by all parties concerned would lead to needless confusion in the conduct of elections in Mississippi.
A prospective application, which is indicated by the Supreme Court by its own plain language quoted above, leaves *439'existing election law in place and offers the Mississippi legislature the freedom to consider amendments in the future which comply with the .remaining effective provisions of the Voting Rights Act' without Mississippi being subject to any preclearance requirements.
In re: The Honorable Eddie Hadskey, 2013 WL 5975618, at *3 (Miss.A.G. Oct. 28, 2013).2 Under the reasoning of this opinion, § 9-19-17 cannot be enforced. The statute was technically and legally ‘dead’ from 1980-onward because it was never precleared.3 See 28 C.F.R. § 51.1(a).
Perhaps an even stronger reason to enforce § 5, however, is found by reading Shelby County with an eye toward the underlying purpose of the Voting Rights Act.
Preclearance was “a prophylactic measure” intended to halt voting changes in areas with a history of racial discrimination in voting. City of Rome v. United States, 446 U.S. 156, 202, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980). As the Court wrote when it first upheld the Voting Rights Act,
The record shows that in most of the States covered by the Act, including South Carolina, various tests and devices have been instituted with the purpose of disenfranchising Negroes, have been framed in such a way as to facilitate this aim, and have been administered in a discriminatory fashion for many years...... Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade-the remedies for voting discrimination' contained in the‘Act itself.... Under the compulsion of these unique circumstances, Congress responded in a permissibly decisive manner.
South Carolina v. Katzenbach, 383 U.S. 301, 333-35, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966); see also Beer v. United States, 425 U.S. 130, 140, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). (“Section 5 was a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down.”).
Because of this disheartening history, the Supreme Court repeatedly refused to disturb Congress’s coverage formula. The Court upheld the 1965 Act,’the 1970 reauthorization, the 1975 reauthorization, and the 1982 reauthorization against constitutional challenges, each time “finding that circumstancés continued to justify the provisions.” Nw. Austin Mun. Util Dist. No. One v. Holder, 557 U.S. 193, 200, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009) (collecting cases). And when considering the 1975 reauthorization, which included the period during which § 9-19-17 was enacted, the Supreme Court explained, “Congress’ considered determination that at least another *4407 years of statutory remedies were necessary to counter the perpetuation of 95 years of pervasive voting discrimination is both unsurprising and unassailable. The extension of the Act, then, was plainly a constitutional method of enforcing the Fifteenth Amendment.” City of Rome, 446 U.S. at 182, 100 S.Ct. 1548. When circumstances on the ground changed, the coverage formula should have changed too, said Shelby County. But the formula was upheld for decades for a reason.
Mississippi was a covered jurisdiction from 1965 to (at a minimum) 2006 because Congress reasonably feared that new voting laws the state enacted would violate the Fifteenth Amendment. Every voting change the Mississippi Legislature enacted in 1980, therefore, was deemed to present too significant a risk of perpetuating racial discrimination.
When Shelby County is read against this historical backdrop, it is not clear why Mississippi should be excused from its failure to preclear a 1980 voting change, including and especially § 9-19-17. The statute is a product of a time and era Congress thought unreliable on voting issues. It carries a risk that the persons it excludes from running for office would be excluded for the wrong reasons.
The panel today essentially answers this question: How can a state violate § 5 by seeking to administer a law without preclearance when that state is no longer subject to 'preclearance? But the state violated § 5 when it failed to seek preclearance for § 9-19-17 in the last 33 years it was a covered jurisdiction.4 The law was a nullity when enacted and cannot be administered today. So, a more appropriate question may be: How can a state seek to administer a law that is null and void because it was never precleared?
Again, the panel’s resolution of the motion is a correct application of the preliminary injunction standard. I certainly agree that under Shelby County, states have no obligation to preclear laws enacted by the current generation of voters and legislators. Shelby County’s application to the past, though is less clear. If skepticism of earlier laws remains justifiable, then this court and others like it have the power to enforce § 5, at least against laws of another era.5
. I think all agree that Shelby County also did not disturb § S. Section 5 is immobilized only by way of its intersection with the coverage formula. See Shelby Cnty., 133 S.Ct. at 2631 ("We issue no holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.”).
. The Hadskey opinion was not anomalous. See In re: Kimberly P. Turner, Esquire, 2013 WL 5975639, at *1 (Miss.A.G. Oct. 30, 2013) ("Question One: In light of ... Shelby County ..., are the majority vote requirements provided for in HB 877 (Chapter 470, Laws, of 2009) now enforceable? Response: No.”).
. I acknowledge it can be difficult to determine when a new decision is retroactive. Most of the cases finding Shelby County retroactive are not helpful on this point: since they were pending when the decision was handed down, Shelby County applied immediately as a matter of course.
To be fair, Hall v. Louisiana does discuss the application of Shelby County to pre-2006 voting changes. I am just not sure Hall is correct. To me, the holding of Shelby County that can be applied retroactively is its finding that the 2006 coverage formula was too unreliable to continue to be used. But that says nothing about the enforceability of voting changes enacted but not precleared under earlier, constitutional coverage formulas.
. This fact is disheartening in and of itself. As the Harris court put it, "we should expect states to comply with federal voting rights law as it stands at the time rather than attempt to predict future legal developments and selectively comply with voting rights law in accordance with their predictions.” Harris, 993 F.Supp.2d at 1076.
. What remains is the remedy. The remedy for a § 5 violation used to be to require the jurisdiction to seek preclearance. That cannot be ordered because preclearance is gone, but Shelby County offers a simpler, easier path forward. The jurisdiction can simply reenact the voting change. In this case, the plaintiffs § 5 claim would be rendered moot if the Mississippi Legislature passed (and the Governor signed) § 9-19-17 tomorrow.