If you listen to the court watchers reacting to Wednesday’s oral arguments in Shelby County v. Holder, you might be bracing yourself for a roll back of voting rights. They are largely predicting the formula used to determine which states and localities are subject to or “covered” by the preclearance provision of the Voting Rights Act (VRA) will be struck down by the Supreme Court. This isn’t the first time we’ve heard these prognostications. In 2009, similar predictions abounded in a similar case, Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), involving this key provision, called Section 5, of the VRA. They were wrong in NAMUDNO, and while only time will tell, I think they will be wrong in Shelby County.
Shelby County is in Alabama, a state whose record makes clear that voting discrimination persists. During the last reauthorization period, Alabama had 240 discriminatory voting lawsblocked by Section 5 or remedied by Section 2, another portion of the VRA that prohibits discriminatory tests or devices and applies nationwide. Today, even though African-Americans constitute more than one-quarter of the population, Alabama has no African-American statewide elected officials. For years, Shelby County relied on at-large districts to minimize black influence. Only after settling a lawsuit brought under the Voting Rights Act did the county agree to institute single-member districts. In 2008, Calera, one of the county’s six municipalities, submitted a redistricting plan that eliminated the town’s sole majority-black district, again in violation of the Voting Rights Act.
As Justices Elena Kagan and Sonia Sotomayor noted Wednesday, given its record on voting rights, Shelby County is not the most compelling (self-described) victim of what is widely held to be the most effective piece of civil rights legislation in our country’s history. Although Shelby County claims the coverage formula denies it the “equal dignity” it deserves, it is highly doubtful any reasonable or effective formula could be devised that would not cover Alabama or Shelby County.