April 4th 2024 | Yashas Mallikarjun
Edited by Katie
A decade ago, civil rights leaders across the country held silent as they waited for the Supreme Court’s opinion in Shelby County v. Holder. In a 5-4 vote, the court found that the United States Congress was exceeding its authority under the Fourteenth and Fifteenth amendment by continuing to enforce Section 4(b) of the landmark Voting Rights Act of 1965 (Oyez). Section 4(b) created a formula that determines which states would be subject to preclearance requirements by the federal government before updating their voter registration or election laws, In essence, after this coverage formula was declared unconstitutional, the federal government was unable to restrict certain states that historically had tests or fees from passing laws that could affect minority participation in federal elections (National Archives). Now, we are a decade removed from this ruling, and we must consider how much our political environment has changed. From a neutral perspective, was the court correct to end a law that created disparate treatment of certain states?
In the original opinion, the court held that it was antithetical to the spirit of federalism if certain states had preferential treatment compared to others (Oyez). The Fourteenth and Fifteenth Amendments were insufficient causes for the federal government to override the much older theory of federalism. Due to the lack of an expiration of the coverage formula, the court found grounds to end the law as it stands. The court explained that Congress could pass a new coverage formula that would be flexible in which states were required to comply with this preclearance formula (DOJ). However, with a lack of political will, this never happened. Select southern states were now free to do as they pleased with election law and updating voter registration rolls.
While I can be sympathetic to the fact that Federalism is the bedrock of the American political system: in many instances, states are the birthplace of new and interesting policies due to their relative independence from national politics and authority. Disparate treatment of states is the status quo— Medicare and Medicaid distribution depends on the demographic of the state. Earmarks depend on the whims of legislators in the Senate and the House. However, prioritizing certain parts of the Constitution over other parts seems like a dark path to follow. An invisible argument that the court seems to make is that federalism is more important than the reconstruction amendments; in their language, the Voting Rights Act is based on “60-year-old” facts (Oyez). There are several inconsistencies with this logic. First, federalism itself is based on three-hundred-year-old facts: there was a need for local and state government because the free flow of information did not exist to create an effective centralized state at all levels. Second, different parts of the same constitution do not carry different weights. Federalism is just as important as the Fourteenth Amendment, which is just as important as the freedom of speech. Deciding that certain parts of the Constitution are less important, especially amendments, sets a bad precedent for identifying amendments as ‘less important pieces of the Constitution.’ Thirdly, the court’s decision reflects a clear lack of engagement with the reality of the situation. It seems that the court simply forgets that the Fourteenth and Fifteenth Amendments were solely written to restrict the states from engaging in de facto discrimination. Deciding that the Fourteenth and Fifteenth Amendments no longer carry this power is a gutting of the Constitution like we have never seen before. Not only did the court knife the Voting Rights Act; it also knifed the plain text of the Constitution to further gut landmark amendments.
Now that I have explained this court decision, let us consider further litigation that also affected this landmark law after Shelby County v. Holder. The court has still thrown out maps under other sections of the Voting Rights Act. The court recently ruled in Allen v. Milligan that the current Alabama political maps were “deliberately diluting” the Black vote and should be redrawn (Totenberg). Gerrymandering on the basis of race is still unconstitutional, and in theory, racist election laws are not allowed. But the hill to climb is comparatively large; there is to be a clear and intentional exclusion of Black votes in order to receive relief from the courts. This is particularly true because, by 2021, the Supreme Court has interpreted the totality of language in the Voting Rights Act to not apply to every single instance where some sort of discrimination has occurred in effect (Lerner & Lavine). In essence, the threshold is now to prove an intent to discriminate by people drawing the maps or removing names of marginalized groups from voter rolls— this is very difficult and nearly impossible.
Even as I write this article, the courts slowly strip away other parts of the Voting Rights Law. An appellate court decided this year that private entities or persons cannot bring suits under the Voting Rights Act. In this case, the decision was made against the NAACP Arkansas chapter (Nazzaro). For a stretched-thin DOJ, which is now required to take up all of these voting rights cases, it is the last thing that one wants. This case will likely end up at the Supreme Court, but given the court’s recent history of deciding voting rights cases by a thin margin, we cannot be sure which side will end up prevailing (Totenberg).
The plain effects of Shelby County v. Holder— where each southern state that was otherwise required to seek preclearance has passed a restrictive voting rights law, effectively reducing the underrepresented population vote— have still been small compared to what the future has been justified by deciding on the favor of gutting the voting rights law. Shelby County v. Holder could be seen as opening the floodgates to a litany of litigation regarding the Voting Rights Act. After the strike down of the preclearance formula, we have seen numerous small updates by the courts to other sections of The Voting Rights Act. This transforms a previously sacred piece of legislation deemed untouchable by the court in the 1970s and 1980s, where every section was repeatedly upheld, to a law that is much more malleable and interpretable, which is akin to the Clean Water Act that seems to get reinterpreted every year according to the partisan lean of the court considering a relevant case.
Shelby County v. Holder effectively turned the Voting Rights Act into nothing but a symbolic end to discrimination in a ‘bygone era.’ It deems discrimination to be over, pushing it from the front of public consciousness to the end— making it invisible and, therefore, much more insidious. It is time for Congress to act with a new, clarified version of the law that builds in protections from conservative suits and clarifies a new coverage formula in Section 4(b) of the Voting Rights Act of 1965.
Source:
Archives. “Voting Rights Act (1965).” National Archives and Records Administration, National Archives and Records Administration, www.archives.gov/milestone-documents/voting-rights-act. Accessed 10 Jan. 2024.
DOJ. “Section 4 of the Voting Rights Act.” Civil Rights Division, 17 Nov. 2023, www.justice.gov/crt/section-4-voting-rights-act.
Levine, Sam & Lerner, Kira. “Ten Years of a Crippled Voting Rights Act: How States Make It Harder to Vote.” The Guardian, Guardian News and Media, 25 June 2023, https://www.theguardian.com/us-news/2023/jun/25/voting-rights-act-voter-map-registration-id-racism-supreme-court-georgia.
Nazzaro, Miranda. “Appeals Court Says Private Citizens, Civil Rights Groups Can’t Sue under Voting Rights Act.” The Hill, The Hill, 21 Nov. 2023, thehill.com/regulation/court-battles/4319132-court-says-private-citizens-civil-rights-groups-cant-sue-under-voting-rights-act/.
Oyez. “Shelby County v. Holder.” Oyez, http://www.oyez.org/cases/2012/12-96. Accessed 10 Jan. 2024.
Totenberg, Nina. “Supreme Court Rejects Alabama’s Defiance in Voting Case.” NPR, NPR, 26 Sept. 2023, http://www.npr.org/2023/09/26/1200906844/supreme-court-alabama-voting-case.
Totenberg, Nina. “The Supreme Court Is the Most Conservative in 90 Years.” NPR, NPR, 5 July 2022, http://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative.
JHULR 
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