The Post-Shelby County Game
17 Berkeley J. Afr.-Am. L. & Pol'y 236 (2015)
7 Touro J. Race, Gender, & Ethnicity 236 (2015)
16 Pages Posted: 1 Sep 2013 Last revised: 8 Jun 2015
Date Written: 2013
Prior to 2008, the system of voting rights as established by the Voting Rights Act (VRA) entailed a stable Nash Equilibrium among the players. Developments in that year and thereafter destroyed the Equilibrium, resulting in the U.S. Supreme Court’s opinion in Shelby County v. Holder. That opinion has triggered what I call the Post-Shelby County game. In the short-term, this game will favor jurisdictions that wish to enact discriminatory voting rules. In the medium-term, it will lead to a system of voting rights that is unstable, unpredictable, and unfair for both minority voters and jurisdictions. In the long-term, a new version of the VRA will emerge that is a better fit to current patterns of discrimination than the law the Shelby Court considered. This will be a salutary result, but also one that will have to address both pre-Shelby County discrimination and new discrimination that will have arisen because of the Court’s opinion. This will also have been an unnecessary result, because the Shelby Court should not have invalidated section 4(b) of the VRA.
Keywords: Shelby County v. Holder, Voting Rights Act
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