by Professor Atiba R. Ellis
Associate Professor of Law
West Virginia University
In Shelby County, AL v. Holder, the Supreme Court, in a 5-4 decision split on ideological lines, declared unconstitutional the formula used under the Voting Rights Act of 1965 to determine which states and localities must receive pre-approval of their voting rights laws. This decision, which effectively ends the preclearance practice meant to preserve minority voting rights, will transform the right to vote for years to come. Once again, relying on the myth of racial progress, the Supreme Court failed to confront the racial balkanization in voting that exists, and it ultimately crippled the role that Voting Rights Act has in limiting it.
This lawsuit was brought by Shelby County, AL. This county, along with the rest of Alabama, as well as Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, Alaska, Arizona, and parts of seven other states (known as the “covered jurisdictions”) was required under Section Five of the Voting Rights Act to have any change in their election laws approved (or “precleared”) by the U.S. Department of Justice. The covered jurisdictions were selected for the preclearance requirement according to a formula set out in Section Four of the act. The formula considered the jurisdiction’s past history of voting rights violations, current violations, white and minority voting rates, and other factors. Shelby County argued that both Section Five’s preclearance requirement and Section Four’s coverage formula were unconstitutional. The Court struck down the Section Four formula.
Chief Justice Robert’s opinion for the five-justice conservative majority relied on two premises. First, the opinion stated that each state is due “equal sovereignty,” that is each state has power to regulate matters left to the states, including voting, to the same extent as other states. As innocuous as that might sound, consider Roberts’s second premise: “the conditions that originally justified [the preclearance measures that justified differing treatment of states] no longer characterize voting in the covered jurisdictions.” Slip op. at 2. Roberts pointed to substantial progress in voter participation and the increase in minority elected officials in the time from the passage of the act until now. Id. at 13-15. Yet, Roberts continued, the current coverage formula does not reflect this reality. “Coverage today is based on decades-old data and eradicated practices.” Slip op. at 18. “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.” Id.
Justice Ginsburg wrote a lengthy and thorough dissent for the four liberal-leaning justices. The dissent pointed out the majority’s failure to properly state both the law and the evidence. As a matter of law, she raised the concern that the Court’s decision did not give Congress the deference it is due given its broad authority under the Fifteenth Amendment. She also rejected the notion that the “equal sovereignty” principle commands equal treatment of states since this principle is only applicable to the conditions on states for admission to the union. As a factual matter, Ginsburg disagreed with the majority’s laissez-faire attitude toward racially discriminatory practices in the present. She recounted the evidence that Congress had amassed on modern voting discrimination. Finally, as a realistic matter, she observed that, with the preclearance provision effectively gutted, the country now faces the possibility of the erosion of voting rights.
The immediate result of Shelby County is that by eliminating the coverage provisions of Section Four, the preclearance provisions of Section Five is unenforceable. From this point of view, Shelby County represents a victory for those who wish to see less federal involvement in elections. The majority opinion left it up to Congress to create a new coverage formula. But given the hyper-partisan nature of national politics, it is difficult to imagine how the current Congress or any Congress elected in the foreseeable future would agree on a new coverage formula. From this view, Section Five is dead as a political matter.
Shelby County would also appear to create a potential intra-party conflict for the Republican Party. After the 2012 presidential election, some Republican leaders have observed that the party needs to address minority issues and certainly the protection of minority voting rights through is such an issue. Yet, Section Five served as a way of protecting minority interests from modern conservative policies that impacted minority voting such as redistricting and voter identification laws. After Shelby County, the Republican Party now faces a choice between seeking to modernize the Voting Rights Act to appeal to minority voters on the one hand, and seeking to continue election integrity initiatives which appeal to the Republican base on the other. This will likely stall passage of a revised Section Four.
Moreover, preclearance provided an example to the rest of the country, which served to further moderate the so-called voting wars. With Section Five now ineffective, all bets are now off. The door is now open to more voter suppression, more voting wars, more racial balkanization in votingrather than less. And Voting Rights Act litigants would be left with only Section Two litigation, which, in comparison to the government’s ability to proactively supervise election laws, will prove costly and time consuming to plaintiffs and will rely on retroactive court decisions that come long after the harm.
Moreover, the key premise of the Shelby County opinion is that the covered jurisdictions mainly the ex-Confederate South have changed so sufficiently that the government must reconsider selective preclearance enforcement of race-conscious remedies. The message of the Roberts opinion (and the Thomas concurrence) is that coverage formulas rooted to a past of racial discrimination in voting ignores racial progress. Indeed, Roberts implied that to hold to such formulas amounts to punishment of the states covered for their racial history. (Slip op. at 20).
The majority’s analysis is incomplete and unpersuasive on this key issue. Indeed, it sidesteps the arguments put forward by both sides concerning the degree of progress as “debatable” (Slip op. at 21) rather than grapple with exactly how much progress we have made to racial political equality. Instead, the majority simply asserted (again and again) that Congress had no basis in current political reality to rely on the current coverage formula. Id. Rather than account for the varied forms of second-generation voter intimidation as evidence on which Congress could have based its findings, the majority suggests that increased voter participation demonstrates enough progress towards racial political equality to effectively scuttle Section Five.
As I argued before concerning the Shelby County case, this incomplete picture of racial triumph ignores the political realities of modern voter suppression tactics and their racial impact. Relying on this ideological view causes the majority to fall into the trap of wanting to believe that the markers of progress represent success rather than confronting the far more complex reality. Moreover, without Section Five’s moderating influence and example, the voting wars will proceed uncheck and we as a country may very well see the erosion of the right to vote. The consequences of this premature post-racial decision will likely define negativelythe scope of voting rights for the 21st century.