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Shelby County: Majority Misses Bigger Picture, All is Not Lost

By William Peacock, Esq. | Last updated on

The majority's opinion, in a 5-4 split, was clear: the Voting Rights Act, born of 1960s (and prior) discrimination, had achieved its purpose. The gap in voter registration numbers, once the definitive proof of discrimination in certain southern states, have all but disappeared. And though discrimination occurs on occasion, that doesn't justify violating state sovereignty in light of the lack of a voter registration gap, does it?

Wrong, said Justice Ruth Bader Ginsburg, and the further she went in her 37-page dissent, read aloud from the bench, the more convincing her argument became.

Majority's Selective Statistics

The VRA was passed in the 1960s to curb widespread attempts, such as literacy tests, to decrease the number of registered black voters. The sections of the law at issue, §4(b) (setting forth the criteria used to determine which states would be subject to federal oversight) and §5 (the oversight procedure), allowed the Department of Justice or a three judge panel to review any local voting regulation in a coverage area to determine whether it violates the VRA and Fourteenth and Fifteenth Amendments.

The majority declares success via voter registration, and includes this handy chart to show how far we've come:

SCOTUS chart

Startling results, right? And the voter registration in states covered by §4(b) is often less than non-covered states.

The majority stopped short of striking down the entirety of both sections, however. Their holding was limited to the coverage criteria, which they maintained hadn't been updated since the 1960s. They felt that restricting state sovereignty, and violating the principal of equal sovereignty (each state should be treated equally), should not be done on the basis of decades-old criteria.

They did, however, leave the door open for Congress to develop new criteria. Legal challenges can be brought via §2 as well.

Thomas Concurrence

Short and sweet, as is typical of a Thomas concurrence: he would've stricken the whole thing, §4(b) and §5, for the same reasons as above (equal sovereignty, mission accomplished).

Ginsburg Dissent

In 2005, Congress reauthorized the VRA after months of studies, 21 hearings, and more than 15,000 pages of legislative records. The VRA passed unanimously in the Senate and by an extremely large margin in the House. They did not make their decision lightly.

The majority cites voter registration, but registration is not the only evil that is to be cured by the VRA. What about voter dilution via gerrymandering and annexation of white suburban neighborhoods? What about the 626 DOJ objections to local voting laws between 1982 and 2004, more than the 490 from 1965 to 1982? What about the 700 discriminatory voting changes blocked by the DOJ between 1982 and 2004?

Ginsburg also mentions 2010's Alabama State Legislature scandal, where state senators were caught on tape referring to African Americans as "aborigines" and, while considering a gambling referendum, stated "'[e]very black, every illiterate' would be 'bused [to the polls] on HUD financed buses.'"

We'd like to think that this is a post-racial, post-racism world, but in many ways, it is not. Voter registration may be solved, but concerns over backsliding and voter dilution remain.

It is also important to note that the criteria used to decide which counties and states would be subject to oversight has been revised since the 1960s. Political subdivisions can "bail out" if they meet certain criteria (no incidents for ten years, efforts made to curb discrimination) or be added to the coverage by a court, if violations of the Fourteenth and Fifteenth Amendments have occurred in that county or state.

Nearly 200 jurisdictions have bailed out. The DOJ has approved every eligible bail out application since the procedure was implemented in 1984. Other jurisdictions have been added to coverage, including the entire states of New Mexico and Arkansas.

As for that equal sovereignty principle, it has no basis in controlling precedent. It was dicta in a prior case, and case law aside, numerous federal laws and regulations treat states differently. It sounds nice in theory, but equal sovereignty really doesn't exist.

Finally, Shelby County brought this as a facial challenge, a type of claim that is the hardest to prove, as it asserts that there is no way in which the statute could be constitutional. Justice Ginsburg points out that Shelby County is in, you guessed it, Alabama, where those nice state senators were mocking their minority constituents, plus, a local town in that county recently had a voting change blocked by the DOJ as discriminatory. If any county is not in a position to mount a facial challenge to the VRA, it is Shelby County, Alabama.

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