13 Pages Posted: 2 Nov 2013 Last revised: 8 Jan 2014
Date Written: November 1, 2013
In a year when we mark the 50th anniversary of Martin Luther King’s “I Have a Dream” speech, civil rights leaders and elected officials bemoan what they consider to be a huge setback in the fight for racial equality: the Supreme Court’s recent decision in Shelby County v. Holder. You could thus be forgiven for thinking that Shelby County means that racial minorities are now disenfranchised. But all the court did was ease out an emergency provision enacted in 1965 to provide temporary federal oversight of state elections based on that era’s racial disparities. While politicians and pundits irresponsibly liken the ruling to sanctioning Bull Connor’s dogs, it actually shows the strength of our protections for voting rights.
What the Supreme Court struck down was Section 4(b) of the Voting Rights Act, which is the “coverage formula” used to apply Section 5, a provision requiring certain jurisdictions to “preclear” with the federal government any changes in election regulations. The Court found that this formula was unconstitutional because it was based on 40-year-old data, such that the states and localities subject to preclearance no longer corresponded to incidence of racial discrimination in voting. Indeed, black voter registration and turnout is consistently higher in the formerly covered jurisdictions than in the rest of the country.
Just as the Court was correct in 1966 to approve the constitutional deviation that preclearance represents as an “uncommon” remedy to the “exceptional conditions” in the Jim Crow South, it was correct now in restoring the constitutional order. As Justice Thomas wrote in another voting rights case four years ago, disabling Section 5 “represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.”
While Justice Ginsburg compared getting rid of Section 5 to “throwing away your umbrella in a rainstorm because you are not getting wet,” it’s actually more like stopping chemotherapy when the cancer is eradicated. There’s more to be done to achieve racial harmony in America, to be sure, but the best way to honor the heroes of 1963 is to build on their triumphs rather than pretend that we still live in their time.
Keywords: voting rights, Fourteenth Amendment, Fifteenth Amendment, Shelby County, NAMUDNO, Northwest Austin, Katzenbach, civil rights
Suggested Citation: Suggested Citation
Shapiro, Ilya, Shelby County and the Vindication of Martin Luther King's Dream (November 1, 2013). NYU Journal of Law & Liberty, Vol. 8, No. 1, 2013. Available at SSRN: https://ssrn.com/abstract=2348776