Ten Years After Shelby County v. Holder

In a post last year, we described both the importance of Section 4(b) of the Voting Rights Act, and the long-lasting impact of the Supreme Court’s Shelby County v. Holder decision. Handed down on June 25, 2013, Shelby County struck down Section 4(b), effectively ending the preclearance system that provided essential protections to voting rights.

Ten years later, the lack of a fully empowered Voting Rights Act (VRA) is still felt. The Brennan Center has found that, over the past decade,“at least 30 states have passed 93 laws that make it more difficult to vote, particularly for communities of color.”

And while Allen v. Milligan, this year’s case out of Alabama, affirmed the continued power of Section 2 of the VRA via a complex 5-4 decision, that decision also highlighted the fragility of the moment. 

In Milligan, Justice Kavanaugh joined Chief Justice Roberts and Justices Sotomayor, Kagan, and Jackson to form a majority opinion. But Justice Kavanaugh declined to join the section addressing the role of race in redistricting. Only four justices – not a majority – affirmed existing precedent holding that “race consciousness does not lead inevitably to impermissible race discrimination” and that “Section 2 itself demands consideration of race.” 

Taken together, the concurrences and dissents in the case make it clear to experts that a more carefully constructed and argued case could eventually find Justices Thomas, Alito, Kavanaugh, Gorsuch, and Barrett in a majority opinion striking down use of race-conscious districting under Section 2. 

The Milligan ruling still points to an existential inability of American jurisprudence to fully understand the role that race plays both in our constitutional text and our lived reality; in that way, it follows the trend set by Shelby County and by other “colorblind” and “history-blind” decisions such as Parents Involved v. Seattle and Abbott v. Perez. 

Ten years on, then, Shelby County and the philosophy it relied on still loom large in our jurisprudence – and in Americans’ free, fair, and secure access to the ballot and ability to elect candidates of their choice. Yet, voting rights and reform advocates continue to gain attention and support from We the People. Efforts around federal bills like the John Lewis Voting Rights Advancement Act and the Fair Representation Act – as well as state-level voting rights acts – are gaining momentum, offering hope that the years that we write about the enduring impact of Shelby County may someday come to end.