What every high school student and educator should know about Shelby County

Today marks the 10-year anniversary of the U.S. Supreme Court’s decision in Shelby County v. Holder, a decision that has allowed states to enact nearly 100 new voter suppression laws in the last decade. 

Shelby County is a voting rights case that every high school student and educator should know. The case is not mentioned in most U.S. Government text books, and it appears nowhere in the AP U.S. Government and Politics curricular requirements or nearly 200 page exam guide. 

Students and educators who want a real understanding of voting rights in the United States today need to understand the extreme nature of efforts to undo the progress of the Voting Rights Act (VRA) and the role the Supreme Court has played in allowing those efforts to succeed.

The VRA was the signature voting rights legislation of the 20th century. Enacted after decades of struggle, its central purpose was and is to end racial discrimination in voting, regardless of its form.

The VRA includes two central prohibitions. The first, contained in Section 2 of the VRA, is a general prohibition, barring state and local governments from discriminating on the basis of race and ethnicity in voting. 

The second is a “preclearance” requirement contained in Section 5. This requirement applies only to jurisdictions with a history of discrimination, and Section 5 requires those state and local governments to “preclear” changes to their voting laws with the U.S. Department of Justice, which is tasked with ensuring that they will not make it harder for racial minorities to vote. 

Preclearance is important because once an election occurs under discriminatory laws, the harm is immediate in giving power, plus the status of incumbency, to whoever is elected. This harm is difficult and expensive to undo after the fact. 

The VRA includes a formula for deciding which parts of the country were subject to preclearance, and that formula is contained in Section 4 of the VRA. Congress repeatedly extended or modified the coverage formula, most recently in 2006, with an extension of 25 years. 

At the time, Congress expressly found an ongoing need for preclearance in light of extensive “[e]vidence of continued discrimination” and that “without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” 

The VRA also includes a process for state and local governments that are able to show that they were no longer at risk of taking further discriminatory actions free themselves of the preclearance requirement (known as “bailing out”), and many have done so.

Shelby County, Alabama, however, did not want to submit its laws for preclearance. In 2013, its challenge eventually made its way to the Supreme Court, where it argued, among other things, that the formula for deciding which jurisdictions would be subject to preclearance was outdated and therefore unconstitutional. Although Congress had extended the formula in 2006, the formula itself had not been modified since 1972.

In a 5-4 decision, the Supreme Court agreed with Shelby County, striking down the formula and making preclearance inoperable. Today, while Congress retains power to update the formula, efforts to do so have not yet been successful. The very discriminatory laws that Shelby County unleashed have made it harder for racial and ethnic minorities to gain the political power in Congress that is needed to do so. 

Justice Ginsburg wrote a famous dissent in the case. She warned that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

That quote gained wide popularity and helped to make RBG into an iconic figure, including among youth. She wore her dark, metallic dissent collar to announce her decision from the bench, and it became a symbol of resistance. 

Symbols are important, and a dissent collar is as good as any. But let’s be clear on what the symbol means. It means there was a loss. It means the loss was serious. It means the votes do not exist to maintain important constitutional or statutory principles. 

The attacks on voting rights are still happening today.

New legislation is needed at the federal level. States can also act to protect voting rights.

In the meantime, perhaps at least some Justices on the Supreme Court have realized the gravity of the threat the Court has unleashed to the fair functioning of our democracy. 

Earlier this month, in Allen v. Milligan, ruled on a new redistricting case that was seeking to limit the reach of Section 2 of the VRA, the core protection against discrimination in voting. But, in a 5-4 ruling the Court declined to do so, instead applying its long-established test for determining when redistricting laws violate the VRA. The opinion was written by Justice Roberts, who had also written the opinion in Shelby County, and, unlike Shelby County, it contains a significant discussion of the reasons and history justifying passage of the VRA.

Ultimately the direction the court will take is hard to predict. Does Milligan signal that the Court is turning away from its path of undoing protections of the VRA, or is it just a pause? We don’t know.

What we do know is that courts rarely lead the way in any social change movement. Courts protect fundamental rights best when, as a result of the combined forces of leadership, organizing, advocacy, and action, they can see in every dimension of society, the demand to protect our fundamental values. 

And when that happens, perhaps the AP exam will cover it.