Mapping a Post-Shelby County Contingency Strategy

17 Pages Posted: 30 May 2013

See all articles by Guy-Uriel E. Charles

Guy-Uriel E. Charles

Duke University School of Law

Luis E. Fuentes-Rohwer

Indiana University Maurer School of Law

Date Written: May 30, 2013


This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the VRA after Shelby County v. Holder. We argue that voting rights activists ought to be prepared β€” because of developments in constitutional law, or politics, or political practice β€” for a future in which section 5 is not part of the voting rights landscape. If the Court strikes down section 5, an emerging and fragile ecosystem of private entities, non-judicial institutions, and organized interest groups of various stripes, may be willing and able to mimic the elements that made section 5 an effective regulatory device for protecting the rights of voters of color. In this model, the primary actors are private or civic intuitions. We term this β€œthe private protection model.”

In other contexts, these civil society or third-party groups might be identified as nongovernmental entities. They include public-interest groups, advocacy organizations, political parties, political committees and the like. For ease of exposition we broadly identify them here as institutional intermediaries.

These institutional intermediaries may be well positioned to address the vexing questions posed by voting rights policy in a period of transition: How much racial discrimination do we have? Who are the bad actors? Should we have a universal voting rights policy, a race-based one, or one that protects against disenfranchisement motivated by partisanship and ideology?

As voting rights activists plot a post-Shelby County contingency strategy, they should both account for institutional intermediaries and think about the types of changes that could enhance the ability of these groups to better protect voting rights, now and in the future.

Keywords: voting rights act, section 5, institutionalism, interest groups, shelby county

Suggested Citation

Charles, Guy-Uriel and Fuentes-Rohwer, Luis E., Mapping a Post-Shelby County Contingency Strategy (May 30, 2013). Indiana Legal Studies Research Paper No. 245. Available at SSRN: or

Guy-Uriel Charles (Contact Author)

Duke University School of Law ( email )

Box 90360
Science Drive & Towerview Rd.
Durham, NC 27708
United States

Luis E. Fuentes-Rohwer

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-855-5003 (Phone)
812-855-0555 (Fax)

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