When the Supreme Court issued Shelby County v. Holder last month, Chicken Littles on the left almost immediately began shouting that is was “a blow to democracy,” or that it obstructs “Americans’ fundamental right to vote,” or even that “the Court has left millions of minority voters without the mechanism that has allowed them to stop voting discrimination before it occurs.” Such hyperbolic claims were not all that surprising from organizations advocating for the constitutionality of fifty-year old coverage formula, but they did little to explain the true impact of the decision.
PLF had a different story. For months we had been explaining that a decision invalidating the Voting Rights Act’s coverage formula would be an important first step in ensuring that our discrimination laws were targeted at contemporary claims of discrimination. We explained that such a decision could not implicate other sections of the Voting Rights Act. Claims that jurisdictions were discriminating in their voting procedures could still be brought in every jurisdiction in the country. Preclearance could still be required in jurisdictions where the Department of Justice proved that the jurisdiction had been engaging in on going blatant voting discrimination. And Congress could go back and create a brand new coverage formula based on contemporary data and tailored to those jurisdictions most in need of special protections.
So, one month later, who was right? Well, claims brought under Section 2 of the Voting Rights Act are being litigated in a number of states . The Department of Justice is proceeding under Section 3 of the Voting Rights Act to force Texas into preclearance. And Congress has already started the process of crafting a brand new coverage formula.
So, no, the sky has not fallen. As I said back in September, when Shelby County was first petitioning the Supreme Court to hear its case: “It should be equally uncontroversial that our civil rights laws should be designed to address the discriminatory voting practices of today.” That uncontroversial statement is exactly what the Supreme Court held in Shelby County; it was a blow for democracy.