Analysis of the Supreme Court Decision in Shelby v. Holder
The Supreme Court today struck a blow to efforts to protect voters from racial discrimination in voting. In a 5-4 decision, the Court today invalidated Section 4 of the Voting Rights Act (the “coverage formula”), which determines which parts of the country are covered by Section 5 of the Act. Section 5 requires those “covered” jurisdictions to get approval from the U.S. Department of Justice or a federal court before implementing any change in law or procedure that would affect voting. The Court explicitly did not rule on the constitutionality of Section 5, but instead ruled that Section 4 is unconstitutional. Thus, by invalidating the coverage formula, the Court has created a result in which Section 5 cannot be applied anywhere.
When the Voting Rights Act was reauthorized in 2006, Congress compiled thousands of pages of evidence demonstrating that voting discrimination was still persistent and pervasive in the jurisdictions identified in the coverage formula developed in 1965 and updated in 1972 and 1975. It was on this strong evidentiary basis that Congress decided to continue the application of Section 5 to the jurisdictions identified by Section 4.
Chief Justice Roberts authored the majority opinion, which ignored the voluminous Congressional record. Instead, the Chief Justice wrongly focused on the reasons that justified the coverage formula in 1965—reasons that were not the justifications used in 2006. The majority opinion repeatedly emphasized the affront to equal state sovereignty created by having a scheme under which only certain jurisdictions are subjected to federal oversight. Chief Justice Roberts emphasized that the law’s current burdens must be justified by current needs, and wrote that Congress did not adequately connect the coverage formula to current political realities. This position is irreconcilable with the evidence of recent voting discrimination in covered jurisdictions. The Court also departed from its standard deference to Congress—the elected officials that are best equipped to determine what kinds of voting rights protections are still necessary.
Justice Ginsberg drafted a powerful dissent, pointing out the multitude of flaws in the majority’s reasoning. The dissent also lifted up some of the stories of devastating discrimination in voting, including the significantly higher rate of successful cases under Section 2 of the Voting Rights Act in covered jurisdictions. She pointed out the logical fallacy in halting Section 5 protections because they have been so effective. Indeed, she noted that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Still, hope remains. The majority opinion noted that “voting discrimination still exists; no one doubts that.” Section 5 still stands, but Congress must act quickly to enact a new coverage formula, as invited to do so by the Court. Protecting the right to vote is a bipartisan goal, and voting rights advocates will be pushing Congress to do the right thing—to restore the Voting Rights Act and respect the right of every American to participate in the political process. Please follow this link to find out about the importance of Community Organizing After Shelby.