A Recent Decision of the US Supreme Court on Legal Discrimination in the Access to Voting Rights: Five Readings of “Shelby County”

It is a commonplace that the abolition of all formal forms of racial discrimination in the United States has not led to the eradication of various vestiges of discrimination, usually indirect, in the law. An important sphere of traditional discrimination concerns voting rights – arguably the key aspect of civic self-determination in a democracy. The Voting Rights Act (VRA) of 1965 was aimed at making it illegal to enact any indirect measures of discrimination against African-Americans, in particular through various tests, such as literacy or property tests, which in effect adversely impact on racial minorities, traditionally disadvantaged in access to the goods and benefits which figured as criteria in such tests. Nevertheless it was not the end of the problem as local authorities at the state and sub-state level, especially in the Southern states, have been quite ingenious in designing various patterns which, while facially race neutral, led to the exclusion of black Americans from equal access to voting. Hence, the Act established some special procedures for vetting and scrutinizing, by federal authorities, any modifications of election rules in states and sub-state entities viewed as particularly prone to enacting such designs, for discriminatory reasons or with discriminatory effects. But things have changed – or are said to have changed – over the half a century which has passed since the enactment of the VRA, and an increasing number of political actors and legal practitioners and scholars have come to a view that those extraordinary designs (which will be described, in some detail, below) have long passed their ‘use by’ date. The law cannot be static, it has been said, and must respond to changed social and political realities, rather than remain set in stone. This is, in a nutshell, the basis for bringing a challenge to some sections of the VRA by a county in Alabama which felt victimized by special requirements of having to have their electoral arrangements approved by federal authorities, in contrast to the majority of US territorial entities which are free of such a burden. Shelby County v Holder, a decision of the United States Supreme Court of 25 June 2013, resolved this issue to the satisfaction of Shelby County. But a very strong dissent and the fact that, like in so many of the Court’s most controversial decisions, the Court was sharply divided 5:4 indicates that the problem at the root of the litigation is far from closed.In this article we will begin by summarizing the facts and describing the judgment of the Court, as delivered by Chief Justice Roberts (Part 1), then we will discuss the lengthy and weighty dissenting opinion by Justice Ginsburg (Part 2), after which we will provide an overview of the main and most representative responses by legal scholars to the Shelby County decision (Part 3). In the concluding remarks we will offer some suggestions about the more general, rather than purely US-related, significance of the Shelby County decision.