A New Call to Action One Year After Shelby v. Holder

US Supreme Court

One year ago today—June 25, 2013—the U.S. Supreme Court gutted a key provision of the Voting Rights Act (VRA) in the landmark decision Shelby County v. Holder.
A narrow 5-4 majority rendered the Act's coverage formula unconstitutional. The formula had required certain states and jurisdictions with a history of racial discrimination in voting practices to receive preclearance from the U.S. Department of Justice (DOJ) or a three-judge panel of the U.S. District Court for the District of Columbia before implementing new election practices or procedures. Nine states, primarily in the Deep South, and a handful of jurisdictions from Manhattan, New York to Monterey, California were covered under the formula. Since the decision inShelby, several previously covered jurisdictions have swiftly enacted or administered discriminatory voting changes that would not have been possible before the ruling.

 Writing for the majority in Shelby, Chief Justice John Roberts stated that the coverage formula was "based on decades-old data and eradicated practices." He suggested that "the Nation is no longer divided along [racial] lines, yet the Voting Rights Act continues to treat it as if it were."
Not only was this a decision of extraordinary judicial activism, ignoring decades of legal precedent upholding the constitutionality of the VRA, but it also turned a blind eye to racially discriminatory voting practices that persist in jurisdictions formerly covered by Section 4(b) - and a lengthy congressional record highlighting these practices. The Court also failed to take note of the spike in states and political subdivisions that had bailed out of the preclearance requirements—a spike triggered by the Court itself two years earlier in Northwest Austin Municipal v. Holder.
Just eight years ago, in 2006, both houses of the U.S. Congress reauthorized the VRA with near universal support from Democrats and Republicans. After compiling an extensive, 15,000-page record, Congress noted that "vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process." The record concluded by saying, "without the continuation of the [VRA] protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote."
The consequences of the Court ignoring Congress's fact-finding and reasoned judgment are clear: since Shelby County, jurisdictions that were previously covered by the VRA have enacted or adopted new voting restrictions that will have detrimental effects on voting rights.
Take, for example, what is happening in Beaumont, Texas, where blacks and whites constitute a relatively even share of the city's population. For decades, Beaumont held single-member district elections for its seven member school board. In four of the districts, black voters had been able to elect the candidates of their choice. In an apparent attempt to dilute black votes, the city proposed a change in the method of electing the school board that reduced the number of single-member districts to five and converted two seats to citywide (or at-large) elections. At-large elections have traditionally been used to limit the ability of minority groups to elect candidates of their choice.
In 2011, voters in Beaumont approved the new 5-2 voting scheme. Whites predominantly voted in favor of the change, and blacks predominantly voted against the change. At the time, because Beaumont was included in the VRA's preclearance regime, the federal government had to pre-clear the change before it could go into effect. The DOJ denied preclearance, finding that the redistricting plan would impede the ability of minority voters to elect candidates of their choice. As a result, Beaumont maintained its seven single-member districts.
The ink was hardly dry on the Shelby County decision, however, when several white voters went into state court and obtained an order requiring the school board to implement the discriminatory 5-2 scheme. These white voters had previously run for election to the seats that black school board members currently hold. Black voters have filed a lawsuit in federal court in an attempt to stop the 5-2 scheme from going into effect. However, with preclearance out of the way, the city can use the discriminatory plan while that lawsuit winds its way through the courts.
Just hours after the Shelby decision was published, Texas Attorney General Greg Abbott announced that the state—which had been covered under the preclearance regime before Shelby—would "immediately" implement the strictest voter ID law (SB 14) in the country. A three-judge panel of the U.S. District Court for D.C. blocked the photo ID law in 2012, finding that it had a discriminatory effect on racial and ethnic minority voters. The Supreme Court's 2013 decision in Shelby County gave Texas the 'green light' to begin enacting the photo ID law. Although the Campaign Legal Center and other organizations have filed suit challenging the law on behalf of plaintiffs in the case Veasey v. Perry, the law is already in effect.
Similarly, in other jurisdictions such as Gadsden, Alabama, Galveston County, Texas, and Pasadena, Texas, officials are implementing or have announced plans to implement discriminatory voting changes that were prohibited before the Shelbydecision. These present instances of discrimination underscore the value of what was lost when the Supreme Court struck down Section 4(b) of the Voting Rights Act in Shelby.
In many jurisdictions previously subject to preclearance, the Shelby decision has – as Congress predicted – threatened the 14th and 15th Amendment rights of minority voters. State and local governments no longer must gain preapproval from the federal government before enacting changes in their voting and election procedures. Even with remaining provisions of the VRA intact, discriminatory voting schemes can take effect quickly – often before voters and potential litigants know these voting changes are about to occur. Moreover, without federal review, private citizens must shoulder the heavy financial burden of a lawsuit in order to try and block them.
Now is the time for our Congress to heed its own warnings and restore the Voting Rights Act. Republican and Democratic co-sponsors in both the House of Representatives and the Senate have moved quickly to propose the Voting Rights Amendment Act of 2014 (VRAA). The Act accepts Chief Justice John Roberts's invitation in the Shelby decision to update the coverage formula and enhances the federal government's ability to protect minority voters from discriminatory laws. Under the VRAA, repeat offenders with significant voting rights violations are brought back under the preclearance regime. The VRAA also strengthens the ability of those challenging voting law changes to obtain preliminary injunctions to put potentially discriminatory laws on hold while judges make their decisions. Moreover, it creates a more transparent and accountable system for jurisdictions to disclose election law changes, giving voters more opportunities to learn about and understand legislation or changes that will affect their right to vote.
Fifty years ago this year, three brave men - James Earl Chaney, Andrew Goodman, and Mickey Schwerner - were murdered by white supremacists after trying to register black Mississippians to vote. The call for a Voting Rights Act that followed ushered in one of the most successful pieces of legislation in American history. But the fight for voting rights is not over. Present instances of discrimination persist, and emphasize the need for our Members of Congress to hold hearings on and pass the VRAA. Today, the U.S. Senate Judiciary Committee will hold a hearing on the VRAA. It is now up to the chairman of the House Judiciary Committee, Rep. Bob Goodlatte of Virginia, to do the same and schedule a hearing in the House of Representatives.
Congress must act and must act now. Although we cannot undo the damage that the Court's decision in Shelby has already caused, we can again strengthen protections for voting rights, to ensure that all Americans have the opportunity to exercise their fundamental right to vote.
To find out more about how you can get involved, click here.
To access the Campaign Legal Center's filings in Veasey v. Perryclick here.
To read The Leadership Conference's 32-page report detailing present instances of discrimination in voting practices, click here.