Thank you for using Who Built America?  The project is currently in beta with new features to be implemented over the coming months, so please check back. If you have feedback or encounter any bugs, please fill out this form.

American Social History Projec
WHO BUILT AMERICA?

Ruth Bader Ginsburg, Dissent in Shelby Co. v. Holder

Background: In the 2013 case, Shelby County v. Holder, the Supreme Court ruled 5–4 in favor of the county’s legal challenge to the Voting Rights Act. The lawsuit focused on the Voting Rights Act’s Section 5, which required jurisdictions with a history of racist discrimination in voting to receive a “preclearance” from the Department of Justice before changing electoral laws and policies. Congress had reauthorized the Act repeatedly since it originally passed in 1965, most recently in 2006. As part of the court’s minority, Judge Ruth Bader Ginsburg wrote the dissenting opinion, which was also signed by Justices Sotomayor, Breyer, and Kagan.  In this excerpt from her dissent, Ginsburg stressed the effectiveness of the Voting Rights Act in holding back persistent attempts at disenfranchisement, including those that she defined as second-generation barriers to minority voting. Criticizing the decision of the court’s majority, Ginsburg concluded that “Throwing 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."

Although the Voting Rights Act (VRA) wrought dramatic changes in the realization of minority voting rights, the Act, to date . . . surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens. . . . Efforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot, are aptly described as “second-generation barriers” to minority voting. Second-generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an “effort to segregate the races for purposes of voting.” Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority. By switching to at-large voting, the overall majority could control the election of each city council member, effectively eliminating the potency of the minority’s votes. A similar effect could be achieved if the city engaged in discriminatory annexation by incorporating majority white areas into city limits. . . . Whatever the device employed, this Court has long recognized that vote dilution, when adopted with a discriminatory purpose, cuts down the right to vote as certainly as denial of access to the ballot. . . .

Set out below are characteristic examples of changes blocked in the years leading up to the 2006 reauthorization:  

  • In 1995, Mississippi sought to reenact a dual voter registration system, “which was initially enacted in 1892 to disenfranchise Black voters,” and for that reason, was struck down by a federal court in 1987. 
  • Following the 2000 census, the City of Albany, Georgia, proposed a redistricting plan that DOJ found to be “designed with the purpose to limit and retrogress the increased black voting strength . . . in the city as a whole.” 
  • In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town’s election after “an unprecedented number” of African-American candidates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen.  
  • In 2006, this Court found that Texas’ attempt to redraw a congressional district to reduce the strength of Latino voters bore “the mark of intentional discrimination that could give rise to an equal protection violation,” and ordered the district redrawn in compliance with the VRA. In response, Texas sought to undermine this Court’s order by curtailing early voting in the district, but was blocked by an action to enforce the §5 preclearance requirement. 
  • In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the board. The proposal, made without consulting any of the African-American members of the school board, was found to be an “‘exact replica’” of an earlier voting scheme that, a federal court had determined, violated the VRA. 
  • In 1993, the City of Millen, Georgia, proposed to delay the election in a majority-black district by two years, leaving that district without representation on the city council while the neighboring majority-white district would have three representatives. DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits. 
  •  In 2004, Waller County, Texas, threatened to prosecute two black students after they announced their intention to run for office. The county then attempted to reduce the availability of early voting in that election at polling places near a historically black university. 
  •  In 1990, Dallas County, Alabama, whose county seat is the City of Selma, sought to purge its voter rolls of many black voters. DOJ rejected the purge as discriminatory, noting that it would have disqualified many citizens from voting “simply because they failed to pick up or return a voter update form, when there was no valid requirement that they do so.” 

. . . The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrimination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights. In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding. Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.

Source:  https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf