Toward a Fundamental Right to Evade Law? Protecting the Rule of Unequal Racial and Economic Power in Shelby County and State Farm (original) (raw)
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Shelby County v. Holder: Nullification, Racial Entitlement, and the Civil Rights Counterrevolution
2015
issue of political philosophy: rather, it became synonymous with trepidation of 9 Samuels: Shelby County v. Holder: Nullification, Racial Entitlement, and t Published by Digital Scholarship @ Texas Southern University, 2015 Samuels Shelby County v. Holder 197 outside interference with their perceived inalienable right to perpetuate their peculiar institution. Further, Calhoun invokes the names of Thomas Jefferson and James Madison, authors of the Virginia and Kentucky Resolutions of 1798 that were penned in response to the hated Alien and Sedition Acts. The aim of Calhoun and his compatriots goes beyond the desire to give their contemporary act of defiance more respectability. Rather, they assert that the Union constitutes a “compact” in which sovereign states had combined in order to establish a national government. All powers other than those specifically delegated to the national government in the Constitution remain within the sovereignty of the separate states. Accordingly, the...
Shelby County v. Holder: When the Rational Becomes Irrational
2014
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812 R I. THE HISTORICAL AND LEGAL CONTEXT LEADING UP TO SHELBY COUNTY . . . . . . . . . . . . . . . 815 R A. The Disenfranchisement of African Americans Prior to the Enactment of the Voting Rights Act . . . . . . . . . 815 R B. The Adoption of the Voting Rights Act of 1965 . . . . 817 R C. Unsuccessful Challenges to the Section 5 Preclearance Scheme and Reauthorizations of Section 5 in 1970, 1975, and 1982 . . . . . . . . . . . . . . . . . . . 819 R D. The 2006 Reauthorization and the Northwest Austin Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 822 R II. GAME CHANGE: SHELBY COUNTY V. HOLDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825 R A. The Congruence and Proportionality Test Would Have Required the Court in Shelby County to Consider Factors It Largely Ignored . . . . . . ...
Race, Federalism, and Voting Rights
SSRN Electronic Journal, 2000
In Shelby County v. Holder,' the Supreme Court struck down Section 4 of the Voting Rights Act ("VRA") on the grounds that the Act violated "basic principles" of federalism and the equal sovereignty of the states. 2 Though the debate over "our federalism" is a longstanding one, federalism considerations in the context of voting rights are of more recent vintage. Indeed, notwithstanding the fact that Congress enacted the VRA nearly fifty years ago, it was not until thirty years later, in Miller v. Johnson, 3 that a majority of Justices first alluded to the "federalism costs" of the VRA. 4 By 1997, in Reno v. Bossier Parish School Board, 5 these costs had become "serious." And in Charles S.
Bepress Legal Series, 2006
Voting Rights Act of 1965 is widely known as the most effective civil rights statute in history. This is an expected distinction, as President Johnson asked for and ultimately signed the "goddamnedest toughest" legislation possible. But the President and the 89 th Congress could not do this important work alone. They knew that the substantive provisions of the statute presented a difficult challenge to established constitutional norms and for this reason they offered a broad and expansive statutory canvass. In so doing, and as this Article argues, they implicitly enlisted the U.S. Supreme Court as a key player in the fight against voting discrimination. Unsure about the constitutional boundaries at issue, Congress and the administration left many things unsaid, wishing for the Court to extend the substantive provisions of the Act as far as constitutionally permissible. This account turns the conventional wisdom on its head. The Warren Court-widely considered a bastion of liberal policy-making and judicial activism-interpreted the statute precisely in accordance to congressional wishes. Yet this proved to be a risky strategy, for as soon as the Court's composition changed, so did its collective view of the statute. In other words, it is the Rehnquist Court who has demonstrated a penchant for judicial activism under the guise of strict constructionism. As Congress debates the upcoming extension of the Voting Rights Act in 2007, this is a condition of the Act to which Congress must close attention.
This article reviews two recent United States Supreme Court decisions concerning civil rights: Shelby County v. Holder, and United States v. Windsor. In Shelby County v. Holder, the Court invalidated an important section of the Voting Rights Act, which designated certain jurisdictions as requiring " preclearance " for changes in their election laws. In United States v. Windsor, the Supreme Court found unconstitutional a provision of the Defense of Marriage Act which defined marriage as between a man and a woman for the purpose of federal law. This article identifies two points of commonality between these two decisions: an emphasis on federalism, and on a formal conception of equality. It concludes by suggesting that certain aspects of the decision in United States v. Windsor might point towards a more substantive conception of equality.
The Blinding Color of Race: Elections and Democracy after Shelby
Berkeley Journal of African American Law and Policy, 2014
Decades after passage of the historic Voting Rights Act, so much has changed. And yet, so much remains the same. Racial minorities are registering to vote and turning out at the ballot box in record numbers. However, they remain under-represented in local elected positions and virtually excluded from national and state political office. Latinos, for example, are the largest racial minority in the U.S. at approximately 17% of the population, but only 3.3% of elected offices are held by Latinos. In states that until recently were covered by the Voting Rights Act (VRA), such as Texas, Alabama, Mississippi, and Louisiana, 11 %, 25%, 30%, and 18% of elected positions are held by African Americans, respectively. Meanwhile, the proportion of African Americans in the state populations is higher at 12.3% in Texas, 26.5%, in Alabama, 37.4% in Mississippi, and 32.4% in Louisiana thereby evincing that racial diversity in elected offices does not represent the population at large. African Americans are also graduating from college at historically higher rates at 21% in 2012 compared to 4% in 1964. And yet, the socio-economic disparities between blacks and whites are alarmingly stagnant when compared to the 1960s when the VRA was passed. Black workers earn on average half as much as their similarly situated white counterparts. The average wealth of a black family is one sixth that of a white family. 77.4% of those living in poverty in the United States are racial minorities compared to 22.6% are whites. And 54% of the prison population is non-white even though they comprise only 37% of the total US population. While some Americans may still harbor racially-biased explanations for such disparities ranging from inferior abilities, laziness, to genetic propensities to violence; open expressions of such biases have become more taboo now than fifty years ago. As explicit forms of racism are normatively and legally rejected, they are replaced with more stealth and subtle expressions of underlying racial prejudices. Negative stereotypes of racial minorities as lazy, ungrateful, incompetent, violent, dishonest, or inassimilable infiltrate decision making processes in schools, workplaces, media, and politics. Collectively, this produces institutional racism that keeps many racial minorities in perpetual poverty under pretextual basis. The social problems that arise from poverty serve to reinforce the negative stereotypes, which in turn perpetuate the socio-economic racial disparities. And thus the cycle continues, leaving racial minorities as a group still noticeably worse off than their white counterparts nearly fifty years after the passage of the VRA. One cause of this phenomenon is electoral disenfranchisement arising from modern-day tactics and mechanisms intended to keep certain races politically marginalized. For if racial minorities have meaningful access to the ballot box such that they are collectively able to select those elected to office, then they may impose changes to the laws, policies, and practices that produce systemic racial disparities in wealth, education, employment opportunities, and a host of other contexts. Fully cognizant of the relationship between political empowerment and material disparities among races, the drafters of the VRA sought to leverage the power of the federal government to level the electoral playing field at the local and state level. Furthermore, the VRA was not merely about protecting the mechanics of voting, but rather an acknowledgement that certain privileged groups, i.e., powerful whites, would continue to attempt to disempower other groups, particularly blacks during the 1960s, through various techniques that would evolve with time and changing circumstances. Notwithstanding significant progress made in decreasing overt discrimination, discriminatory tactics aimed at disempowering minority voters continue to plague the American electoral process. From unnecessarily stringent voter identification laws, limits to early voting, and limits to same day registration, to redrawing legislative districts for purposes of segregating races; the problems the VRA originally aimed to address are still pertinent today. While the explanations provided for adopting such practices may appear race-neutral, the underlying objectives are far from it. Predominantly white decision makers are rewriting election rules to dilute the votes of racial minorities. As a consequence, minority voters are unable to collectively elect representatives whom they can hold accountable if they fail to incorporate minority communities’ needs into the political agenda. Rather than acknowledge the plethora of evidence that proves the continuation of pervasive discriminatory electoral processes, albeit in different forms than five decades ago, the U.S. Supreme Court in Shelby County v. Holder adopts a specious colorblind narrative that focuses on form over substance. That is, so long as racial bias is not overt or explicit in state voting laws, the Court treats it as non-existent. And by refusing to acknowledge its existence, racism will somehow disappear. Thus, no effort need be made to scratch beneath the illusive race-neutral surface to inquire into the purposes of policies that systematically produce racially disparate outcomes. Similarly, there is no need to inquire why educational, and economic disparities continue to prevail along racial lines five decades after the civil rights movement. But all of this begs the question: why do electoral processes matter so much that over 48 amici briefs were filed in Shelby, a plethora of news articles were written about the case, and civil society organizations mobilized across the country to defend the VRA? Are the stakes at issue in Shelby merely about abstract notions of state sovereignty, the mechanics of voting, or something much larger that implicates every person in the United States and defines the character of the nation? It is in answering these questions that Americans as a collective have a mutual interest in seeing the forest from the trees. Failure to do so could risk falling into the treacherous pitfalls experienced by other nations who face insurmountable obstacles in achieving democracy due to the absence of legitimate electoral processes.