The Blinding Color of Race: Elections and Democracy in the Post-Shelby County Era
TOURO LAW JOURNAL OF RACE
The Blinding Color of Race: Elections and Democracy in the Post-Shelby County Era
SAHAR F. AZIZ
0 Adrian Castañeda, UCSB Study Indicates Minorities Underrepresented in Government , S
1 See, e.g., Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Mapping a Post-Shelby County Contingency Strategy , 123 Y
2 Associate professor, Texas A&M University School of Law. I thank Ellen D. Katz, Anthony paper. Special thanks to Ola Campbell and Larissa Maxwell for their diligent research assistance , USA
Decades after passage of the historic Voting Rights Act (VRA), 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.1 Nevertheless, they remain under-represented in local elected positions and virtually excluded from national and state political positions.2 Latinos, for example, are the largest racial minority in the U.S. at approximately 17% of the population,3 but only 3.3% of elected political positions are held by Latinos.4 In states that the VRA until recently covered, such as Texas, Alabama, Mississippi, and Louisiana, African Americans held 11 %, 25%, 30%, and 18%5 of elected positions, respectively; although the
proportion of their state populations are higher at 12.3%,6 26.5%,7 37.4%,8
and 32.4%,9 respectively.
African Americans are also graduating from college at higher rates now
than ever before.10 Nevertheless, the socio-economic disparities between
blacks and whites are alarmingly stagnant when compared to the 1960s.11
Black workers earn on average half as much as their similarly situated white
counterparts.12 The average wealth of a black family is one sixth that of a
white family.13 77.4% of those living in poverty in the United States are
racial minorities compared to 22.6% who are white.14 Also, 54% of the prison
population is non-white15 even though racial minorities comprise only 37% of
the total U.S. population.16 While some Americans may still harbor
raciallybiased 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.17
When presiding over cases involving explicit forms of racism, courts
consistently strike down the attributable policies and practices. However,
many judges fail to recognize more stealth and subtle expressions of
6 State & County QuickFacts: Texas, U.S. CENSUS BUREAU,
http://quickfacts.census.gov/qfd/states/48000.html (last updated Jan. 6, 2014).
7 State & County QuickFacts: Alabama, U.S. CENSUS BUREAU,
http://quickfacts.census.gov/qfd/states/01000.html (last updated Jan. 6, 2014).
8 State & County QuickFacts: Mississippi, U.S. CENSUS BUREAU,
http://quickfacts.census.gov/qfd/states/28000.html (last updated Jan. 6, 2014).
9 State & County QuickFacts: Louisiana, U.S. CENSUS BUREAU,
http://quickfacts.census.gov/qfd/states/22000.html (last updated Jan. 6, 2014).
10 PEW RESEARCH CTR., KING’S DREAM REMAINS AN ELUSIVE GOAL; MANY AMERICANS SEE RACIAL
DISPARITIES 26 (Aug. 22, 2103),
http://www.pewsocialtrends.org/files/2013/08/final_full_report_racial_disparities.pdf (citing an
increase from only 4% of black adults ages 25 and older had graduated college in 1964 to 21% in
11 Id. passim.
12 URBAN INST., RACIAL WEALTH DIVIDE IS 3 TIMES WIDER THAN INCOME GAP, THREATENING
ECONOMIC OPPORTUNITY INTEGRITY (Apr. 29, 2013),
14 People in Poverty by Selected Characteristics: 2010 and 2011, U.S. CENSUS BUREAU,
https://www.census.gov/hhes/www/poverty/data/incpovhlth/2011/table3.pdf (last visited March 16,
15 Todd D. Minton, Jail Inmates at Midyear 2012-Statistical Tables, U.S. DEP’T OF JUSTICE, (May
16 State & County QuickFacts: USA, U.S. CENSUS BUREAU (Jan. 7, 2014),
17 Shanto Iyengar et al., Explicit and Implicit Racial Attitudes: A Test of their Convergent and
Predictive Validity 2 (unpublished APSA 2011 Annual Meeting Paper),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1901991 (last visited March 17, 2014).
underlying racial prejudices.18 Negative stereotypes of racial minorities as
lazy, ungrateful, incompetent, violent, dishonest, or inassimilable infiltrate
decision making processes in schools, workplaces, media, and politics.19
Collectively, this produces institutional racism that keeps many racial
minorities in perpetual poverty.20 The social problems that arise from
poverty serve to reinforce the negative stereotypes, which in turn perpetuate
the socio-economic racial disparities.21 And thus, the cycle continues, leaving
racial minorities, as a group, noticeably worse off than their white
counterparts nearly fifty years after the passage of the VRA.22
Modern-day tactics and mechanisms intended to keep certain races politically
marginalized, arising either from partisan interests or negative stereotypes,
contribute to minorities’ continual electoral disenfranchisement.23 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 change the
laws, policies, and practices that produce systemic racial disparities in
wealth, education, employment opportunities, and a host of other contexts.24
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.25 Furthermore, the VRA was not merely about
protecting the mechanics of voting, but rather an acknowledgement that
certain privileged groups, i.e., powerful whites at the time, would continue to
attempt to disempower other groups, particularly blacks during the 1960s,
through various techniques that would evolve with time and changing
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, restrictions on 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.27 While the explanations provided for
adopting such practices may appear race-neutral, the underlying objectives
are far from it.28 In fact, the state legislatures’ claims that voter ID laws
prevent election fraud, which rarely occurs. Moreover, election fraud is
already criminalized. All the while, these adopted measures seem to
consistently have a negative impact on minority voter turnout. Nueces
County, Texas, provides a recent example for gerrymandering that negatively
impacts minorities other than African-Americans. After the rapidly growing
Latino community surpassed 56% of its population, the county changed local
election districts to dilute the strength of Latino votes.29 In the end,
27 NAACP, supra note 2, passim.
28 See United States v. McGregor, 824 F. Supp.2d 1339, 1344-48 (M.D. Ala. 2011) (while trying to
prevent a pro-gambling bill, the lawmakers shared following exchanges in private conversations
recorded by the FBI: “Just keep in mind if [a pro-gambling] bill passes and we have a referendum
in November, every black in this state will be bused to the polls. And that ain’t gonna help.”,
“Every black, every illiterate” would be “bused on HUD financed buses.” In a separate
conversation one legislator asked whether the predominantly black residents of Greene County
were “y’all’s Indians?,” and referred to blacks as “Aborigines.”). See also Padna Hair and Spencer
Overton discussing North Carolina’s new, restrictive voter laws passed in order to “compact the
calendar” Spencer Overton, NC Voting with MSNBC’s Karen Finney & Pendra Hair, BLOG (Dec.
15, 2013) http://spenceroverton.com/, also available at:
also Spencer Overton, Voting Rights Disclosure, 127 HARV. L. REV. F. 19, 26 (2013) (describing
recent cases of gerrymandering negatively impacting racial minorities); see also Kathleen M.
Stoughton, A New Approach to Voter ID Challenges: Section 2 of the Voting Rights Act, 81 GEO.
WASH. L. REV. 292, 298-99 (2013) (describing negative impact of voter ID laws on voter turnout for
African-Americans, 25% of whom do not have a photo ID, compared to just 8% of white citizens);
see also Post-Crawford: Were Recent Changes to Voter ID Law Really Necessary to Prevent Voter
Fraud And Protect Electoral Process?, 12 CONN. PUB. INT. L.J 283, 322-23 (2013) (claiming that
strict voter photo ID requirements are not necessary to protect the electoral process, as the
research has found very few cases of the kind of voter fraud photo ID laws would prevent, and
voter impersonation already is punishable by up to five years in prison and $10,000 in fines under
federal law.) See also E. Earl Parson and Monique McLaughlin, Citizenship in Name Only: The
Coloring of Democracy While Redefining Rights, Liberties and Self Determination for the 21st
Century, 3 COLUM. J. RACE & L. 103, 110-11 (2013) (“Recent efforts to prevent citizens from voting
must be looked at through the prism of the long history of the United States in its attempts to
preclude and disqualify minorities, particularly African Americans from voting, and thus, to
dilute the African American's electorate and, in effect, to make African Americans second tier
citizens in their own country. Without the vote, African Americans cannot participate in
exercising their full citizenry or effect change to ensure their own prosperity.”
29 Overton, supra note 28, at 21.
predominantly white decision makers are rewriting election rules to dilute
the votes of racial minorities.30
The result is minority voters’ inability to collectively elect representatives
whom they can hold accountable if they fail to incorporate minority
communities’ needs into the political agenda. And yet when presiding over
voting rights cases, judges appear to lack understanding of the
discriminatory effect of pretextual attempts to disenfranchise entire
communities. Indeed, Judge Posner, who played a role in drafting the opinion
in Crawford v. Marion County Election Board in 2007 that upheld the
Indiana voter ID law, admitted that he was “one of the judges who doesn’t
understand the electoral process sufficiently well to be able to gauge the
consequences of decisions dealing with that process.”31 As a result, he
clarified that in light of new evidence demonstrating discriminatory impact,
he could no longer be confident that the decision was correct.32
Rather than acknowledge the plethora of evidence that shows a
continuation of pervasive discriminatory electoral processes, albeit in
different forms than five decades ago, the U.S. Supreme Court in Shelby
County v. Holder adopted the flawed colorblind narrative that focuses on form
over substance.33 That is, so long as racial bias is not overt or egregious, the
30 See NAACP, supra note 2, passim.
31 Richard A. Posner, I Did Not ‘Recant’ on Voter ID Laws, NEW REPUBLIC (Oct. 27, 2013),
32 See Sherrilyn Iffill, Discrimination Through the Judge’s Lens, NAT’L L. J. (Nov. 4, 2013)
33 See 133 S. Ct. at 2629 (the majority established that conditions that justified VRA stopped to
characterize voting in the covered jurisdictions because the racial gap in voter registration and
turnout was by the year 2009 lower in the covered states than it was nationwide 133 S.Ct. at
2618. Also, the majority emphasized that 50 years after enacting VRA, things have changed
dramatically and the voter turnout and registration rates approach parity while blatant
discriminatory evasions of federal decrees are rare. The Supreme Court pointed out that minority
candidates hold offices at unprecedented levels 133 S.Ct. at 2625. The majority opinion points to
Congress’s words in the reauthorization act that “significant progress has been made in
eliminating first generation barriers experienced by minority voters, including increased numbers
of registered minority voters, minority voter turnout, and minority representation in Congress,
State legislatures, and local elected offices. The Court also found that the Census Bureau Data
from most recent election indicate that African-American voter turnout exceeded white voter
turnout in five of six States originally covered by §5, with a gap in the sixth State of less than one
half of one percent 133 S.Ct. at 2626. The Court pointed to the decreasing number of DOJ’s
objections to proposed voting changes and stated that the Act proved immensely successful in
redressing racial discrimination, and although problems remain in the covered States and others,
there is no denying that, due to VRA, the Nation has made great progress 133 S.Ct. at 2626. At
the same time, the majority admits that voting discrimination still exists 133 S.Ct. at 2619. This
approach is an example of the colorblind narrative which dominant feature is the belief that
Court seems to treat it as non-existent.34 One is thus left questioning
whether the Court’s refusal to acknowledge racism causes it to believe that
racism will somehow disappear. Minimal 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,
the Court does not feel obligated to inquire why economic, educational, and
economic disparities continue to prevail along racial lines five decades after
the civil rights movement. To the extent Justice Roberts acknowledges
discrimination exists, he mistakenly does not deem it sufficiently severe to
warrant a continuation of the preclearance regime.35 However, the facts from
various states show otherwise, as shown in Justice Ginsburg’s dissent in
racism is a “thing of the past,” that ameliorated during the gains of the Civil Rights Movement
with the specific policies of integration, affirmative action, and the creation of governmental
agencies to enforce antidiscrimination legislation, and that after nearly forty years of real and
imagined gains for a substantial number of people of color, whites often assert that racism is no
longer a persistent or significant Such view limits racism to actions of individuals against other
individuals. See Margaret M. Zamudio and Francis Rios, From Traditional to Liberal Racism:
Living Racism in the Everyday, 49 SOC. PERSPECTIVES No. 4, 483 484-85 (Winter 2006). See also
Charles A. Gallagher, Color-Blind Privilege: The Social and Political Functions of Erasing the
Color Line in Post Race America, 10 RACE GENDER & CLASS No. 4, 22 (2003) (explaining that the
colorblind perspective allows whites to imagine that being white or black or brown has no bearing
on an individual's or a group's relative place in the socio-economic hierarchy. Starting with the
deeply held belief that America is now a meritocracy, whites are able to imagine that the material
success they enjoy relative to racial minorities is a function only of individual hard work,
determination, thrift and investments in education. The color-blind perspective removes from
personal thought and public discussion any taint or suggestion of white supremacy or white guilt
while legitimating the existing social, political and economic arrangements which privilege
34 Shelby Cnty., 133 S. Ct. at 2629.
35 See id. at 2619.
36 See id. at 2640-42 (In 1995, Mississippi sought to re-enact 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 after 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 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; in
2006, the Supreme 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
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; in 2004,
But all of this begs the question: why do electoral processes matter so
much that over 48 amici briefs were filed in Shelby,37 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? In answering these questions,
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 electoral processes deemed illegitimate by their populace.38
Election Processes Define the Character of a Nation
Democracy is as much about process as it is about results. In all nations,
scarcity of resources, albeit in varying degrees, creates a competition for
control over their allocation.39 In turn, this creates inevitable disputes
among the members of a polity as to whom should receive how much of any
particular resource. The means by which such perennial disputes are
resolved defines the character of a nation and ultimately the prospect of a fair
and just society.40
Waller County, Texas, threatened to prosecute two black students after they announced their
intention to run for office.
37 See Preview of United States Supreme Court Cases, Shelby County, Alabama, Petitioner v. Eric
H. Holder, Jr., Attorney General, et al., A.B.A.,
(last visited Mar. 7, 2014).
38 See Sahar F. Aziz, Revolution Without Reform? A Critique of Egypt’s Election Laws, 45 GEO.
WASH. INT’L L. REV. 1 (2013); FOUTOUH EL CHAZLI & KARIM EL CHAZLI, EURO-MEDITERRANEAN
HUMAN RIGHTS NETWORK, EGYPT: THE INDEPENDENCE OF THE JUDICIARY 27–29 (Susan Sharpe
trans., 2010) (noting some reform-minded judges' fears prior to the revolution that the
falsification of electoral results would make people lose confidence in the judiciary if the judges
were constitutionally obliged to oversee the electoral process); Khalil Al-Anani, Egypt’s Souring
Transition, OPEN DEMOCRACY (Oct. 19, 2011),
http://www.opendemocracy.net/khalil-alanany/egypt%E2%80%99s-souring-transition; see also James Feuille, Reforming Egypt’s
Constitution: Hope for Egypt’s Democracy?, 47 TEX. INT’L L.J. 237, 258-59 (2011); Ozan O. Varol,
The Democratic Coup D’État, 53 HARV. INT’L L.J. 291, 356 (2012); Abdel-Fattah Mady, Popular
Discontent, Revolution, and Democratization in Egypt In A Globalizing World, 20 IND. J. GLOBAL
LEGAL STUD. 313, 329 (2013).
39 For a discussion of armed conflict over natural resources, see Phillippe Le Billon, The Political
Ecology of War: Natural Resources and Armed Conflicts, 20 POL. GEOGRAPHY 561–84 (2001).
Without transparent and procedurally just processes, people are more
likely to use the power of their fists and guns to forcibly control essential as
well as non-essential resources for themselves, their families, clans, or
tribes.41 With that comes an increased risk of violence and bloodshed. The
struggle for power becomes a zero sum, winner-takes-all game where the
strongest and fiercest survive while the meek die—not much different than
the rules of the jungle. History has shown that most humans find this an
undesirable way of life, as societies have collectively gravitated toward more
non-violent means of settling conflicts, with some more successful than
This is where elections come into play. While elections are no panacea for
resolving perpetual, and sometimes existential, competition for resources;
they offer long-term, nonviolent means of selecting winners based on criteria
other than sheer force.43 And winners do not receive a carte blanche to
starve losers of resources. Instead, elections channel anxieties arising from
resource scarcity toward political campaigning, civil debate, negotiation, and
ultimately the ballot box to determine who will have the privilege of
allocating resources fairly and equitably among the citizenry. Failure to do
so results in replacing the representative in exchange for another who heeds
the demands of the voting public. Under a legitimate electoral process,
today’s winners may become tomorrow’s losers as governments evolve based
on public -will rather than a dictator’s whims. Elections, therefore, allow
societies to evolve like a swinging pendulum attracted to a middle ground
where everyone has to forego something for the sake of the collective.44 In
the end, elections empower citizens to shape their destinies as a collective
with common interests.45
41 E.g., Michelle Maiese, Distributive Justice, BEYOND INTRACTABILITY (Guy Burgess & Heidi
Burgess eds., 2003), http://www.beyondintractability.org/essay/distributive-justice (last updated
42 Seth Borenstein, World Becoming Less Violent: Despite Global Conflict, Statistics Show Violence
in Steady Decline, WORLD POST (Oct. 22, 2011, 3:31 P.M.),
43 Electoral Processes & Political Parties: Elections, Political Parties, Democracy & Peacebuilding,
PEACEBUILDING INITIATIVE, http://www.peacebuildinginitiative.org/index.cfm?pageId=1943; The
Secretary-General, Support by the United Nations System of the Efforts of Governments to
Promote and Consolidate New or Restored Democracies, 30, U.N. Doc. A/55/489 (Oct. 13, 2000),
available at http://www.un.org/documents/ga/docs/55/a55489.pdf.
44 Amy Gutmann & Dennis Thompson, The Case for Compromise, HARV. MAG., July-Aug. 2012, at
24, passim, http://harvardmag.com/pdf/2012/07-pdfs/0712-24.pdf.
45 See id. passim for a discussion of how campaigning and political polarization in our American
democratic system has negatively impacted elected officials’ ability to compromise for the public
In an age where democracy has become a hollow cliché employed by some
of the most authoritarian regimes, simply holding elections does not
guarantee meaningful empowerment, equality, and justice. There is no
shortage of nations who mechanically hold elections that are meaningless to
a disaffected populace.46 Corruption and fraud skew election results in favor
of authoritarian regimes who win every election by a landslide
notwithstanding deeply rooted discontent.47 Incumbents manipulate
electoral processes to disempower certain groups, guarantee a monopoly over
resources to other groups, and close the avenues for reforming the system.48
Coupled with an iron-fisted security apparatus, the populace is frightened
into a life of submission and poverty while a small, corrupt class enriches
itself with state resources.49 These societies are analogous to a pressure
cooker ready to explode, leaving violence as the only means to attain justice.
The Middle East is a case in point. Multiple revolutions across the region
in 2010 and 2011 were a culmination of decades of oppressive and
impoverishing policies implemented under the guise of elections.50
Authoritarian regimes in Egypt, Tunisia, Yemen, and Syria claimed
legitimacy based on their purported electoral success.51 To the citizenry, the
46 Shadi Hamid, Arab Elections: Free, Sort of Fair . . . and Meaningless, FOREIGN POL’Y (Oct. 27,
ss; See Sahar F. Aziz, Revolution Without Reform? A Critique of Egypt’s Election Laws, 45 GEO.
WASH. INT'L L. REV. 101 (2012).
47 E.g., Egyptian Elections: Opposition Alleges Fraud, GUARDIAN (Nov. 29, 2010, 12:05 P.M.),
Barry & Michael Schwirtz, After Election, Putin Faces Challenges to Legitimacy, N.Y. TIMES (Mar.
48 See e.g., Andrea Teti & Gennaro Gervasio, Egypt’s Post-Democratic Elections: Political Meaning
Beyond the Menu of Manipulation, OPEN DEMOCRACY (Jan. 14, 2011),
49 Cara Parks, What’s Going on in Egypt?, WORLD POST (Jan. 28, 2011, 11:52 P.M.),
http://www.huffingtonpost.com/2011/ 01/28/whats-going-on-in-egypt_n_815734.html (last updated
May 25, 2011 7:30 P.M.); Eric Andrew-Gee, Making Sense of Tunisia, NEW REPUBLIC (Jan. 17,
50 Adel El-Adawy, The Future of Egypt’s Electoral System, WASH. INST. (Sept. 16, 2013),
Wendell Steavenson, Pessoptimism, NEW YORKER (Mar. 14, 2011),
51 Ian Johnston, Egypt’s Morsi Says He Won’t Step Down, Vows to Protect His Legitimacy, NBC
NEWS (July 2, 2013, 10:50 P.M.),
http://worldnews.nbcnews.com/_news/2013/07/02/19246354egypts-morsi-says-he-wont-step-down-vows-to-protect-his-legitimacy?lite; Danya Greenfield,
Yemen’s Democratic Revolution, One Year Later, ATLANTIC (Nov. 29, 1012, 10:31 A.M.),
http://www.theatlantic.com/international/archive/2012/11/yemens-democratic-revolution-one-yearelections were a meaningless fraud. Elections had been co-opted by a corrupt
regime intent on hoarding resources for a select business, political, and
military elite in return for its political loyalty, and all at the expense of the
deprived masses. Hence, few citizens bothered to vote, making the ballot box
irrelevant to the notion of justice.52
The resulting skewed distribution of resources balkanized citizens along
ethnic, tribal, or sectarian lines. A small privileged class used various
techniques, including fraudulent elections, to marginalize a large group of
have-nots, resulting in festering resentment.53 The pressure cooker exploded
in 2010 and 2011 when a vast underclass had no other option but to resort to
a physical overthrow of the government. While the revolutions were
remarkably nonviolent when they began, they have become increasingly
violent as attention has shifted to who will control the nation’s resources, how
such leaders are to be selected, and how resources will be allocated among
the citizenry.54 The absence of a tradition of fair elections and a consequent
distrust of election outcomes is contributing toward a regression to
prerevolutionary authoritarian practices in some Middle East countries.55
Meanwhile, the long history of zero-sum, winner-takes-all politics tenaciously
grips the citizenry’s psyche such that even democratically elected officials are
prematurely kicked out of power at the slightest indication of abusive
practices.56 All of this leads to a perpetual state of political insecurity and
later/265699/; Elizabeth A. Kennedy, Riad Farid Hijab Appointed Syrian Prime Minister, WORLD
POST (June 6, 2012, 8:00 A.M.),
http://www.huffingtonpost.com/2012/06/06/riad-farid-hijabappointe_n_1573370.html; Hamadi Redissi, Do Elections in Tunisia Have Meaning?, SADA (Oct. 6,
52 E.g., Egypt Elections: Shafiq v Morsi-Sunday 18 June 2012, GUARDIAN (June 18, 2012),
53 Michael Volkov, Corruption Risks in the Middle East, JDSUPRA BUSINESS ADVISOR (May 23,
2012), http://www.jdsupra.com/legalnews/corruption-risks-in-the-middle-east-70471/; Stephen
Zunes, Fraudulent Egyptian Election, FOREIGN POL’Y IN FOCUS (Dec. 7, 2010),
54 E.g., Ursula Lindsey, Egypt Back at Square One, N.Y. TIMES (Oct. 3, 2013, 10:44 A.M.),
Sullivan, In Tunisia, Islamist Government Paralyzed by Middle Class Backlash and Extremist
Violence, WASH. POST (Sept. 17, 2013),
55 E.g., Egypt: Return to a Generals’ Republic?, BBC (Aug. 21, 2013, 4:48 P.M.),
56 Egypt's President Mohammed Morsi Out as Military Presents Roadmap, WORLD POST (JULY 3,
2013, 3:11 PM),
http://www.huffingtonpost.com/2013/07/03/egypt-morsi-out-armyroadmap_n_3540700.html; Sarah Lynch, 'I Want My Country Back': Egyptians Rally Against
Morsi, USA TODAY (June 30, 2013, 1:28 PM),
the same socio-economic disparities that led to the revolutions in the first
While the historical, economic, and social circumstances in the Middle
East differ significantly from those of the U.S., an important lesson can be
learned by Americans. That is, elections viewed as legitimate by the
electorate are an invaluable component of democracy that takes decades to
develop. Without them, a nation faces a perpetual risk of violence,
corruption, and widespread discontent. Thus, blithely taking for granted the
importance of legitimate elections jeopardizes the wellbeing of an entire
society. And that may very well be what the Shelby County Court did when it
effectively legalized “second generation barriers” to voting by racial
Preserving the Value of Citizenship
Citizenship is a prerequisite for exercising political rights.57 In exchange
for the responsibility of adhering to laws imposed by government, citizenship
accords certain rights that empower individuals to meaningfully shape the
laws to which they are bound.58 As a result, law and the attendant
enforcement mechanisms attain the legitimacy necessary to manage human
affairs.59 Otherwise, law is viewed as merely a tool of the powerful to hoard
resources from and exploit the labor of the weak. Law becomes a tool of
oppression and violence rather than a tool of justice and peace.60
The meaningful right to vote lies at the heart of a representative
democracy.61 The procedures that govern voting directly contribute to
whether the consequent government and its laws are imbued with legitimacy.
Should procedures advantage particular citizens over others in terms of their
eligibility to vote, access to voting, and the weight of their votes, classes of
citizens arise whose influence over their material and political lives differ
57 See Citizenship Rights and Responsibilities, U.S. DEP’T OF HOMELAND SECURITY,
2ca60aRCRD&vgnextchannel=39d2df6bdd42a210VgnVCM100000b92ca60aRCRD (last visited
Mar. 12, 2014).
59 See id.
60 E.g., Alex Rodriguez, Pakistan’s Blasphemy Law Seen as Tool of Oppression, L.A. TIMES (Dec.
27, 2010), http://articles.latimes.com/2010/dec/27/world/la-fg-pakistan-blasphemy-20101227; Anna
Borshchevskaya, Sponsored Corruption and Neglected Reform in Syria, 17 MIDDLE E.Q. 41 passim
61 Voting Rights & Elections, BRENNAN CTR. FOR JUST.,
http://www.brennancenter.org/issues/voting-rights-elections (last visited Mar. 12, 2014).
dramatically. Those disadvantaged by voting procedures are at risk of being
denied access to various resources and excluded from changing society to
alleviate such disparities. In turn, they are more likely to question the
legitimacy and relevance of the voting process for resolving grievances in
what they view as an unjust society.62
Inequities in voting processes also degrade the value of citizenship.
Different classes of citizens, wherein only some citizens are able to control the
levers of power and set rules, produce strife and marginalize the relevance of
citizenship. One’s membership in the advantaged class matters more than
one’s citizenship status. In racial, ethnically, or religiously diverse societies,
this is a recipe for balkanization, political instability, and violence.63
Hence it is no coincidence that when the VRA was passed in 1965, it was
to secure to all in the polity equal citizenship status.64 The drafters of the
VRA recognized that racial minorities in certain jurisdictions suffered
substantially from socio-economic disparities that effectively hindered their
ability to participate in the political process.65 Equality in the weight of one’s
vote was viewed as being as much a component of one’s citizenship status as
equal access to the ballot box.66 Because without equal access and equal
weight the high rates of poverty, unemployment, and diminished educational
opportunities among racial minorities would remain a product of white
political leaders that did not prioritize the needs and harsh material realities
of minority communities.67 Without legal reforms, a permanent underclass of
citizens would persist, ultimately undermining the legitimacy of a
purportedly democratic society comprised of citizens with equal rights.
The Blinding Color of Race
While the VRA has been a remarkable success in eliminating specific tools
and devices used in the 1960s to impede racial minorities’ voter eligibility
and physical access to the voting booths, new barriers have sprung up in
their place.68 Over time, groups apprehensive at the repercussions of
62 E.g., Daniel Carawan, Voting Irregularities Leave a Lingering Distrust of the Voting Process in
VA, EXAMINER (Nov. 12, 2011),
63 See e.g., Kursad Turan, Political Change in Ethnically Diverse Societies: Democratization and
Ethnic Violence 2–3 (Dec. 1, 2004) (unpublished Ph.D. dissertation, Florida State University),
64 Shelby Cnty., 133 S. Ct. at 2651.
65 Id. at 2618.
66 DEFENDING DEMOCRACY, supra note 1, at 5.
67 DEFENDING DEMOCRACY, supra note 1, at 4.
68 E.g., DEFENDING DEMOCRACY, supra note 1, passim.
increased political empowerment of racial minorities developed more creative
means of keeping minorities at the margins of the polity.
Exploiting socio-economic disparities, lawmakers pass voter identification
laws and eliminate voter registration on Election Day that are
disproportionately onerous to minority communities.69 And when that does
not sufficiently decrease the voter turnout, legislative districts are redrawn to
purposely segregate races for the purpose of skewing election outcomes.70
Latinos or blacks are placed into one district, especially as they reach a
critical mass in a predominantly white district, to restrict their ability to play
a determinative role in choosing elected officials.71 Similarly, cities with
growing racial minority populations incorporate majority white areas into the
city limits or switch to at-large voting for the purpose of diluting minority
votes.72 When racial minorities register to vote in record numbers due to
efforts of third parties conducting aggressive voter registration drives, there
are attempts to hamper such efforts.73 While partisan interests partially
69 DEFENDING DEMOCRACY, supra note 1, at 11.
70 Heddy Nam, Vote 2012: Racial Gerrymandering Resegregates the U.S. South, OPEN SOC’Y
FOUND. (Feb. 15, 2012),
http://www.opensocietyfoundations.org/voices/racial-gerrymanderingresegregates-the-u-s-south; Nathan Jaco, Judicial Review of Racial Gerrymandering: A Problem
for Democrats, DAILY KOS (Dec. 17, 2011, 8:09 A.M.),
71 Christopher S. Elmendorf & Douglas M. Spencer, The Geography of Racial Stereotyping:
Evidence and Implications for VRA Preclearance after Shelby County, 102 CALIF. L. REV.
(forthcoming 2014) (manuscript at 12) (on file with author).
72 Abigail Thernstrom, Redistricting, Race, and the Voting Rights Act, 3 NAT’L AFF. 52, 55 (2010),
http://www.nationalaffairs.com/publications/detail/redistricting-race-and-the-votingrights-act; Defending Democracy, supra note 1, at 6.
73 Defending Democracy, supra note 1, at 11–38. See also E. Earl Parson & Monique McLaughlin,
Citizenship in Name Only: The Coloring of Democracy While Redefining Rights, Liberties and Self
Determination for the 21st Century, 3 COLUM. J. RACE & L. 103, 113-14 (2013) (“During the 2004
elections in Allegheny County, Pennsylvania, fake fliers were distributed on official-looking paper
telling Republicans to vote on Tuesday, November 2, 2004, and Democrats the next day. In Ohio,
a memo also distributed on official looking Board of Election stationary, told voters they could not
vote if registered by a NAACP voter drive. A fake letter purporting to come from the NAACP
instructed voters in Charleston, South Carolina that they would be arrested if they voted with
past due child support payments and unpaid parking tickets. A candidate for office in Orange
County, California sent fliers in Spanish to the Latino community prior to the November 2006
election stating: “You are advised that if your residence in this country is illegal or you are an
immigrant, voting in a federal election is a crime that could result in jail time.” In response to the
flier, California’s Secretary of State, Bruce McPherson, mailed letters to the Latino community
informing them that all U.S. citizens have a right to vote and stated that “voter intimidation in
any form is completely unacceptable.” A federal judge in East Texas issued an order during the
November 2006 elections stopping the Attorney General and Texas election officials from
prosecuting people of color for helping the elderly, the disabled and other minorities cast their
vote. The Lone Star Project called this behavior “a voter suppression scheme” designed to impart
animate these tactics, it does not detract from the discriminatory effects that
the VRA aims to protect against. Indeed, what is remarkable about these
tactics is their blatant purpose to secure partisan advantage through
racebased moves in an era where overt forms of discrimination have been largely
replaced with covert or implicit biases.74
As social norms have changed, partially in response to the deterrent effect
of civil rights laws, many Americans reject explicit expressions of racism.75
In current times, expressions of overt racism carry adverse employment and
reputational consequences.76 This has pushed racism underground wherein
it is openly expressed in private settings or among confidants and acted on in
covert ways under pretext.77 And it has also pushed bias into the
subconscious as pervasive stereotypes of particular races affect our
interpretation of events, people’s behavior, and underlying assumptions in
institutional decision making processes.78
Thus, voter discrimination stands out as one of the few areas in which
intentional discrimination drives electoral processes in some jurisdictions. So
much so that between 1982 and 2006 the U.S. Department of Justice (DOJ)
blocked over 700 voting changes based on evidence of discriminatory intent or
discriminatory effect.79 Similarly, government officials altered or withdrew
over 800 proposed changes to electoral laws.80 And yet the U.S. Supreme
Court still questioned the need for the VRA.
Implicit in the Court’s reasoning is the so-called post-racial, colorblind
narrative of American race relations in the twenty-first century wherein race
is purportedly no longer a factor in shaping societal norms.81 Examples of
fear and intimidation. During the November 2006 elections, Latinos in Virginia and Colorado
were told that their ancestry would make them ineligible to vote. In 1988, Republican Assembly
candidate Curt Pringle settled a civil rights suit for voter intimidations. Pringle posted “security
guards” at predominately Latino voting stations in Orange County, California to prevent
noncitizens from casting ballots. In 2006, Republicans in New York challenged late registered voters
by using a check challenge of sending police officers out to check listed addresses.”). See also
United States v. McGregor, 824 F. Supp.2d 1339, 1344-48 (M.D. Ala. 2011).
74 See, e.g., Sahar Aziz, Veiled Discrimination: Coercive Assimilationism in the Workplace,
MICHIGAN JOURNAL OF RACE AND LAW (forthcoming Fall 2014) (providing a summary of the social
psychology literature documenting the prevalence of implicit bias).
75 Shanto, Iyengar, et al., supra note 17, at 2.
76 See id. at 2.
77 See id. at 2.
78 Id. at 2.
79 Shelby Cnty., 133 S. Ct. at 2639 (citing H.R. Rep. No. 109-478, at 21 (2006)).
80 Id. at 2639.
81 See generally Charles A. Gallagher, Color-Blind Privilege: The Social and Political Functions of
Erasing the Color Line in Post Race America, 10 RACE, GENDER, & CLASS 575 (2003); Ian F. Haney
individual success are over-emphasized while collective disparities along
racial lines are ignored to justify the elimination of civil rights legislation,
affirmative action programs, and diversity initiatives. So long as there are a
few minority movie stars, professional athletes, talk show hosts, corporate
executives, and a Black President, then one’s race no longer poses any
challenges to equal opportunity and equal access to employment, quality
education, public safety, and other resources. Overt expressions of racial or
ethnic bias are viewed as anomalies, with little regard for how negative
stereotypes pervert private and public decision making. These perceptions
are belied by statistics showing systemic inequities along racial lines. In the
end, focusing solely on individuals myopically overlooks the impact of
families, communities, schools, and other collectives on the fate of an
individual’s prospects for achievement.82 The individualistic framing of civil
rights leaves minority communities collectively worse off as socio-economic
disparities are attributed to individual failures rather than systemic
Formalism and its Discontents
In adopting the specious colorblind narrative, the majority in Shelby
County set up two straw men to justify its decision to strike down Section 4.
First, it arbitrarily distinguished between the tests and tactics used in the
1960s to impede racial minorities’ ability to equally partake in the political
process and the more recent tactics used for the same purpose.83 Losing sight
of the VRA’s original objective to grant equal citizenship rights to all
Americans, especially politically vulnerable racial minorities, the Supreme
Court myopically focused on the differences in tactics instead of the same
underlying discriminatory purposes.84 Taking a narrow view of the VRA’s
objective, the Court triumphantly announced that literacy tests, poll taxes,
and property ownership qualifications were no longer in use, and thus the
VRA’s usefulness had expired.85 Despite acknowledging that they had been
replaced with racial gerrymandering, stringent voter identification laws, and
restrictions on early voting, all of which target and disparately impact racial
minorities; the Court dismissed such tactics as sufficiently dissimilar as to
López, Is the “Post” in Post-Racial the “Blind” in Colorblind, 32 CARDOZO L. REV. 807, 811-12
(2011) (explaining that contemporary colorblindness arose in opposition to demands for
meaningful structural reform.); Darren Leonard Hutchinson, Preventing Balkanization or
Facilitating Racial Domination? 13-17 (forthcoming, copy on file with author)
82 See Christopher S. Elmendorf & Douglas M. Spencer, supra note 71.
83 Shelby Cnty., 133 S. Ct. at 2629.
84 See, e.g., id. at 2627.
85 Id. at 2627-28.
fall outside of the VRA’s purview.86 That such modern-day tactics are driven
by the same racially discriminatory intentions and produce the same racially
disparate outcomes were erroneously deemed by the Court as beyond the
goals of the VRA.87
Second, the Court apparently dismissed discriminatory practices of
covered jurisdictions as acceptable because non-covered jurisdictions had
similar practices.88 If that is indeed the case and the Court is serious about
its commitment to equal voter rights, then the Court should have called for
the expansion, rather than retraction, of coverage. To be sure, the Court’s
reasoning encourages a race to the bottom where jurisdictions are
incentivized to adopt electoral processes that are as discriminatory as other
jurisdictions but not so discriminatory as to trigger preclearance.
But even the Court’s finding that covered jurisdictions’ racial climates,
and consequent effect on electoral processes, are similar to non-covered
jurisdictions is contradicted by empirical studies showing otherwise.89 The
highly regarded Katz study found that 56% of all successful Section 2
litigation occurred in covered jurisdictions, although they represented less
than 25% of the nation’s population.90 And when unpublished opinions are
considered, the number increases to 81% of all successful litigation.91
Likewise, an empirical sociological study on the geography of voter
discrimination found that covered jurisdictions have higher rates of negative
stereotypes of blacks and racially polarized voting than non-covered
jurisdictions.92 When these factors are coupled with a high population of
blacks, the likelihood of adopting voter denial and suppression methods
increases significantly.93 Specifically, when large numbers of voters form
preferences and make choices based on negative stereotypes about minorities,
then the electorate will either elect a politician who shares their negative
stereotypes or pressure their representative to adopt discriminatory policies
86 Id. at 2629.
87 See id.; see also Ellen Katz, What Was Wrong with the Record? ELECTION L. J. 329, 331 (2013)
(pointing out that “second generation” practices, like gerrymandering or vote dilution, are not
unrelated to the concerns that animated Congress to enact VRA, and that they are a part and
parcel of practices targeted by the original statute).
88 Brief for States of Arizona, Georgia, South Carolina, and South Dakota as Amicus Curiae
Supporting Respondents, Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013) (No. 12-96), 2013 U.S. S.
Ct. Briefs LEXIS 661,
89 See, e.g., Elmendorf & Spencer, supra note 71, passim.
90 Shelby Cnty., 133 S. Ct. at 2643.
91 Brief for Respondents at 13–14, Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013) (No. 12-96).
92 Elmendorf & Spencer, supra note 71, at 45.
93 Id. at 43.
and practices that perpetuate negative racial stereotypes.94 As a result,
covered jurisdictions with this noxious combination of factors pose much
higher risks of political marginalization to their minority electorate than
Lest it become too obvious that minority voters’ rights are no longer its
concern, the Court flippantly highlights its limited ruling to striking down
only Section 4, the coverage provision, while leaving in place Section 5, the
enforcement provision. This leaves Section 2 private party litigation as the
sole enforcement mechanism.95 But Section 2 litigation imposes significant
and costly burdens on minority voters from communities with insufficient
resources to sue a local or state government.96 In contrast, preclearance
shifts the cost of ensuring fair voting practices to a better resourced federal
Tellingly, the majority’s opinion bemoans the burdens on jurisdictions
caused by the VRA with little regard for the burdens on racial minorities that
will arise in the absence of an enforceable VRA. Racial and ethnic minorities
are protected by the VRA, as well as other civil rights laws, precisely because
of their numerical minority status vis-à-vis the white majority. Collectively,
they have fewer resources and less political clout to overcome the electoral
processes that contribute toward their politically vulnerable condition, 98 and
thus the cycle of disempowerment is perpetuated.
American society, therefore, remains at risk of invidious division and
balkanization that lead to long term political instability and a resort to
extralegal means for seeking justice. As government officials who set the rules
rebuke efforts to reform the legal system, the law loses its legitimacy among
portions of the populace disparately impacted by the system. As witnessed
during the civil rights movement of the 1960s, the black power movement of
the 1970s, and the race riots of the 1980s and early 1990s, the streets become
the chosen alternative when courts are incapable of or uninterested in
remedying injustice in society.99 While mass mobilization efforts are an
94 Id. at 14.
95 Brief for American Bar Association as Amicus Curiae Supporting Respondents, Shelby Cnty. v.
Holder, 133 S. Ct. 2612 (2013) (No. 12-96), 2013 U.S. S. Ct. Briefs LEXIS 661, at *8.
96 Id. at *23–24.
97 See id.
98 Defending Democracy: supra note 1, at 4.
99 Civil Rights Movement, HIST., http://www.history.com/topics/civil-rights-movement (last visited
Mar. 12, 2014); Patrick Range McDonald, Then & Now: Images from the Same Spot as the L.A.
Riots, 20 Years Later, LA WEEKLY, http://www.laweekly.com/microsites/la-riots/ (last visited Mar.
12, 2014); In Search of African America: One Collector’s Experience—The Black Power Movement
integral component of a democratic society, they can quickly turn violent
when the underlying grievances cannot be channeled through the electoral
process into substantive change.
Ultimately, the majority in Shelby County lost sight of the objective of the
VRA. This historic law was not merely about preventing the most extreme
levels or forms of discrimination, but rather having in place a regime that is
preventative in nature so as to ensure discrimination continues to decrease
and eliminate the possibility of returning to a period of systemic
disenfranchisement.100 The VRA served the nation’s existential need to
equalize every citizen’s ability to shape the rules governing her society
By dismantling a vital mechanism that propelled our nation toward
achieving the cardinal democratic principle of equal citizenship for all
Americans, the Shelby County Court set our nation back.
1968- 1980 , HERBERT HOOVER PRESIDENTIAL LIBR ., http://www.hoover.archives.gov/exhibits/africanamerican/blackpower/ (last visited Mar. 12 , 2014 ); McDuffie Riots: Eerie Scene from Miami Race Riot of 1980, HUFFPOST MIAMI (May 29 , 2013 , 1 :24 P.M.), http://www.huffingtonpost.com/ 2013 /05/29/mcduffie -riots-miami_n_3353719.html .
100 Brief for Historians and Social Scientists as Amicus Curiae Supporting Respondents, Shelby Cnty . v. Holder, 133 S. Ct . 2612 ( 2013 ) (No. 12 - 96 ), 2013 U.S. S. Ct . Briefs LEXIS 759 , at * 13 - 14 .