The Shelby County v. Holder Supreme Court decision occurred in June 2013. The premise of the case was that Shelby County, Alabama sued the federal government over sections 5 and 4(b) of the 1965 Voting Rights Act, saying that those two clauses violated both Article 4 of the US Constitution and the 10th Amendment. Article 4 of the US Constitution says that states have the right to self-government and the 10th Amendment states that all the rights not explicitly given to the federal government are then subsequently reserved for the states. The Voting Rights Act of 1965 was a landmark piece of legislation that was meant to outlaw forms of racial discrimination in US voting (such as poll taxes and literacy tests) and enforce the rights delineated under the 14th (equal protection for all citizens under the law) and 15th (the right to vote cannot be denied on the basis of race) Amendments. The Voting Rights Act included a concept called “preclearance” (section 5), in which certain jurisdictions were required to submit any changes to voter registration rules to the federal government to be ruled over by a panel of federal judges, so as to prevent discriminatory measures from being implemented by local governments. Section 4(b) determined how jurisdictions requiring preclearance were chosen. They were chosen if they were shown to have a mechanism that restricted voter registration/casting a ballot in the 1964, 1968, or 1972 elections and if less than half of eligible citizens were registered to vote/voted in the aforementioned election years.

Initially when the suit was brought, it was in the US District Court of Washington, D.C., where the provisions of the law were upheld. The subsequent appeal also upheld the provisions of the law named in the suit but the Supreme Court was petitioned and it heard the case. The premise of the plaintiffs’ (Shelby County) argument was, as mentioned earlier, that sections 4(b) and 5 are unconstitutional. The decision reached by the Supreme Court was in favor of Shelby County, with the ruling split 5-4 among the justices (Justices Roberts, Alito, Thomas, Scalia, and Kennedy were the majority while Justices Sotomayor, Kagan, Breyer, and Ginsburg dissenting). The ruling, written by Chief Justice Roberts, was that section 4(b) was unconstitutional and that the circumstances that dictated the measures implemented in the 1965 Voting Rights Act were necessary in the era in which the law was passed but are no longer applicable in contemporary circumstances since the reasons for these measures have been sufficiently addressed. It must be noted that the majority opinion states that “at the same time, voting discrimination still exists; no one doubts that”, which is important since the ruling did not strike down section 5. The dissenting opinion, written by Justice Ginsburg, was that there as still sufficient justification for the utility of the full powers of the Voting Rights Act, that it was still constitutional, that it was a good means of enforcing the rights enshrined in the 14th and 15th Amendments, and that striking down section 4(b) renders the responsibilities of section 5 much more difficult.

Previously, multiple cases were brought against the Voting Rights Act under similar premises but in each other instance, the Voting Rights Act was always upheld in full. This case was the first time that the Voting Rights Act had been curtailed significantly. The impact of the ruling was immediately felt across the United States as voter disenfranchisement, already endemic to American elections, increased. Monroe County in Florida was a county on the federal preclearance list and after the Shelby County decision, it reverted to having only English language ballots despite having a substantial Spanish-speaking population. North Carolina had many jurisdictions requiring preclearance, but has since passed a bill that curtails voting and has engaged in other measures such as closing a significant number of polling places in neighborhoods with majority African-American populations. Arizona as a whole and Maricopa County has seen a sharp drop in the number of polling places in the aftermath of the Shelby County decision. This decision also accelerated multiple initiatives to engage in voter purging, a measure in which inactive or incorrectly registered voters are removed from voter rolls. This actually manifested itself in the outcome of another Supreme Court ruling in which Ohio was allowed to go ahead with its measures to purge purportedly ineligible voters.

The original Voting Rights Act was meant to enfranchise voters and thus counteract democratic erosion and so striking down a key component of the law rendering its enforcement much more difficult is the catalyst for multiple acts of democratic erosion. All of the consequences of the decision listed above all fall neatly into the methods of voter registration manipulation described by Varol [1] as stealth authoritarianism. Reducing the electorate with the ostensible aim of reducing voter fraud/streamlining the electoral process while actually allowing those in power to in effect choose their electorate and freezing out those that are much less likely to vote for them is antidemocratic. Crucially, due to the importance of stare decisis on the Supreme Court, that means there is now legal precedent in future cases for further decisions that consequences for democratic erosion.

References

1. Ozan O. Varol, “Stealth Authoritarianism,” Iowa Law Review 100, no. 4 (May 2015): 1673-1742https://muse.jhu.edu/article/607612