Shelby, Race, and Disability Rights
TOURO LAW JOURNAL OF RACE
SHELBY, RACE, AND DISABILITY RIGHTS
RAVI MALHOTRA 4
0 See WILLIAM BRADFORD HUIE, THREE LIVES FOR MISSISSIPPI (1965). For a broader historical account of the
1 133 S. Ct. 2612, 2013
2 For three superb overviews of James' life , see P
3 The leading source on the largely forgotten Harrison's life is J
4 Associate Professor, Faculty of Law, Common Law Section, University of Ottawa. I thank Professor Anthony Farley for inviting me to participate in this symposium and Professor Mark Weber for valuable background insights and feedback. All errors are my responsibility
5 See e.g., City of Boerne v. Flores, 521 U.S. 507 (1997) (holding Religious Freedom Restoration Act was not legitimate use of Fourteenth Amendment powers), Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) (Patent and Plant Variety Protection Remedy Clarification Act not legitimate use of Fourteenth Amendment powers given no evidence of a pattern of patent infringement by States), Kimel v. Florida Bd. of Regents , 528 U.S.62 (2000) , Age Discrimination in Employment Act authorizing private individuals to sue states for damages for age discrimination not a legitimate use of Fourteenth Amendment powers given lack of pattern of age discrimination by States , USA
Much has been written about the gradual, yet ongoing, evisceration of civil rights and the commitment to racial equality in contemporary American society so courageously fought for by generations of activists of all races. The Voting Rights Act of 19651 was famously paid for in blood by countless activists, notably three young men who were brutally lynched in Mississippi in 1964.2 Yet this was only one chapter in a painful struggle that stretches back decades; a struggle that featured a stinging criticism of the shameful Jim Crow system that infected all aspects of American society by towering figures such as the iconic W.E.B. Du Bois,3 St. Croix born Hubert Harrison4 and the legendary Trinidadian socialist polymath C.L.R. James.5 In Shelby v. Holder,6 a majority of the Supreme Court ruled that the coverage formula section requiring specified jurisdictions with a history of racial discrimination to pre-clear changes in voting tests, section 4(b) of the Voting Rights Act, was unconstitutional.7 It is one more decision among many that have come to be known as the New Federalism jurisprudence which collectively manifest a resistance toward rectifying the various inequalities that continue to plague American society and an increasing willingness on the part of the Supreme Court to restrict Congress' ability to pass, inter alia, civil rights litigation pursuant to Section 5 of the 14th Amendment.8 This marked retreat by the Rehnquist and
Roberts Courts has generated much reflection by those firmly committed to critical
race praxis.9 Critical race praxis entails a deep skepticism of law reform projects to
alleviate the structural racism that continues to plague American society.
In this short essay, I suggest that scholars committed to a critical race
paradigm need to think carefully about how legal retreats in voting rights directed
at fighting racism may also adversely affect the voting rights of people with
disabilities. The struggle against racism and the struggle against ableism at their
core share a common language of solidarity against hierarchy, privilege and
oppression.10 Millions of Americans have disabilities and face an array of barriers in
many aspects of life including employment, health care, education, transportation
and housing.11 People with disabilities also face significant barriers in voting
including problems with access to polling stations, the actual process of voting and
in some cases actual disenfranchisement.12 In the aftermath of Shelby, it is an open
question whether various provisions designed to protect the voting rights of people
with disabilities, such as the 1982 amendments to the Voting Rights Act,13 the
Americans with Disabilities Act of 1990 (ADA),14 and Help America Vote Act of
2002 (HAVA),15 may face constitutional challenge. I propose that the narrative
method, as represented by the landmark scholarship of socio-legal scholars David
Engel and Frank Munger,16 is one useful way to challenge ignorance about the lives
United States v. Morrison, 529 U.S. 598 (2000) (holding that provision in the Violence Against Women Act
providing victims of gender-motivated violence with a federal civil action against perpetrator could not be
justified as legitimate exercise of Congress’s power under Commerce Clause or 14th Amendment), and
Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001) (provision of Americans with
Disabilities Act allowing private individuals to sue states employers for damages not valid use of
Fourteenth Amendment given lack of evidence of pattern of disability discrimination by States)
9 For an overview of critical race theory, see KIMBERLÉ CRENSHAW, NEIL GOTANDA, GARY PELLER, &
KENDALL THOMAS, EDS., CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT (1995).
For a recent commentary identifying Shelby as part of the New Federalism jurisprudence, see Joey
Fishkin, The Way Forward After Shelby, BALKANIZATION (June 25 2013),
10 For a suggestive reading of the similarities between racism and ableism, see BETH A. FERRI & DAVID J.
CONNOR, READING RESISTANCE: DISCOURSES OF EXCLUSION IN DESEGREGATION AND INCLUSION DEBATES
11 See DORIS Z. FLEISCHER & FRIEDA ZAMES, THE DISABILITY RIGHTS MOVEMENT: FROM CHARITY TO
CONFRONTATION (2011); Michael E. Waterstone, The Untold Story of the Rest of the Americans with
Disabilities Act, 58 VAND. L. REV. 1807, 1832-35 (2005) (noting widespread barriers for people with
12 See infra notes 21-32, and accompanying text.
13 42 U.S.C. § 1973aa-6 (2002). As a conditional spending statute, HAVA is likely significantly less
vulnerable than the other statutes. See generally Allison Quick, Legal Limits on Conditional Spending
including Recent Challenges to No Child Left Behind, Harvard Law School Federal Budget Policy
Seminar, Briefing Paper No. 19 (May 2, 2006).
14 42 U.S.C. § 12101 (2002).
15 Pub. L. No. 107-252, 116 Stat. 1666 (2002).
16 See DAVID M. ENGEL & FRANK W. MUNGER, RIGHTS OF INCLUSION: LAW AND IDENTITY IN THE LIFE STORIES
OF AMERICANS WITH DISABILITIES (2002).
of people with disabilities and the barriers they face, including barriers at the
voting booth. The narrative method exemplifies the social model of disablement,
which is centered on the need to remove structural barriers, which make society
inaccessible for people with disabilities.17 It is also consistent with the
counterstorytelling approach advocated by critical race theorists such as Richard Delgado,18
further suggesting possible opportunities for collaboration between critical race and
Voting Rights and Disability Rights
While one typically thinks of voting barriers in the context of racial
discrimination, people with both mental and physical disabilities have faced
significant obstacles to exercising their right to vote. It is important to embrace a
broader conception of equality to fully appreciate the barriers facing people with
physical disabilities in particular, given that people with physical disabilities are
not formally prohibited from voting and have a long history of running for elected
office.19 Yet the fact remains people with physical disabilities encounter many
barriers with respect to a right that lies at the core of democratic values. Barriers
include inaccessible polling places which may be located in schools, churches,
libraries and recreational centers borrowed for the purposes of elections.20 As
Michael Waterstone notes, elections may present additional barriers because
election officials may not have the authority to modify buildings borrowed for the
purposes of polling or it may be too costly to modify for the purpose of elections.21
Social science research demonstrates that accessibility barriers continue to be
widespread. The General Accounting Office, for instance, found that 84% of polling
places had one or more barriers in the 2000 presidential election.22 These included
barriers such as inordinately steep ramps, high door thresholds and a failure to
17 See MICHAEL OLIVER & COLIN BARNES, THE NEW POLITICS OF DISABLEMENT (2012). For American
treatments, see NIRMALA EREVELLES, DISABILITY AND DIFFERENCE IN GLOBAL CONTEXTS: ENABLING A
TRANSFORMATIVE BODY POLITIC (2011); Sunny Taylor, The Right Not to Work: Power and Disability, 55
MONTHLY REV.30 (2004).
18 Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411,
19 Michael E. Waterstone, Lane, Fundamental Rights, and Voting, 56 ALA. L. REV. 793, 825 (2005)
(hereinafter “Lane”). See also Michael E. Waterstone, Constitutional and Statutory Voting Rights for
People with Disabilities, 14 STAN. L. & POL'Y REV 353 (2003). Franklin Roosevelt, who had a mobility
impairment due to polio, famously served as President of the United States during the Great Depression
and World War II. See HUGH G. GALLAGHER, FDR’S SPLENDID DECEPTION: THE MOVING STORY OF
ROOSEVELT’S MASSIVE DISABILITY—AND THE INTENSE EFFORTS TO CONCEAL IT FROM THE PUBLIC (1999),
Even earlier, Eugene T. Kingsley, a double amputee, ran for the House of Representatives in California in
1896 and 1898 as a socialist before moving to Canada where he led a political party. See Ravi Malhotra,
Electioneering and Activism at the Turn of the Century and the Politics of Disablement: The Legacy of E. T.
Kingsley (1856-1929) 7 REV. DISABILITY STUD. 34 (2011). The author is writing, with Benjamin Isitt, a
biography of Kingsley under contract for University of British Columbia Press.
20 Lane, supra note 19, at 826.
provide accessible parking.23 A significant proportion of counties throughout the
country failed to consider accessibility in planning polling sites.24 The decentralized
manner in which elections are conducted, with responsibility for accessibility
conferred by states on thousands of local authorities, makes enforcing physical
accessibility in voting that much more challenging.25
A second area where barriers are commonplace is during the actual voting
process. People with dexterity issues face barriers in using these machines
independently, which is essential to preserve the secrecy of the ballot.26 People with
visual impairments face issues in reading the ballot independently.27 While
electronic voting is slowly altering this, it is critical to ensure that the technology
itself is fully accessible to people with disabilities.28 As Waterstone has noted, states
and counties also require appropriate funding, fraud prevention protocols and
training for election workers in order for technology to work effectively.29 Finally,
the vast majority of states have enacted provisions, which restrict at least some
people with mental disabilities from voting without an individualized test of
While several laws address voting rights for people with disabilities to some
degree, I focus, for the sake of simplicity and space constraints here, on two key
provisions that are particularly likely to be subject to future challenge. Title II of
the ADA prohibits discrimination against people with disabilities in services,
programs, or activities of a public entity.31 This would clearly encompass voting,
although court decisions have been split on whether Title II mandates independent
and secret voting.32 HAVA provides very specific provisions to protect the rights of
people with disabilities to vote. These include funding to ensure the accessibility of
polling sites so that all citizens may independently vote and requiring voting
24 Id. (noting that more than one quarter of counties failed to consider accessibility in selecting polling
places in 2000).
25 Lane, supra note 19, at 825.
26 Id. at 827 (noting more than 1.2 million Americans have insufficient dexterity to use a pen or pencil).
28 For an insightful discussion of the importance of implementing accessibility when designing new
technology, See ALAN ROULSTONE, ENABLING TECHNOLOGY: DISABLED PEOPLE, WORK AND NEW
TECHNOLOGY (1998) For some reflections on the delays in implementing electronic voting, see Daniel P.
Tokaji, The Paperless Chase: Electronic Voting and Democratic Values, 73 FORDHAM L. REV. 1711 (2005).
29 Lane, supra note 19, at 827.
30 Taokaji, supra note 28 at 827-28. See also Developments in the Law - The Law of Mental Illness VII:
Voting Rights and the Mentally Incapacitated, 121 HARV. L. REV. 1179, 1181-85 (2008) (noting how many
states use arbitrary criteria to disenfranchise people with mental disabilities).
31 42 U.S.C. 12132 (2012).
32 Tokaji, supra note 28, at 1745-46 (comparing Am. Ass'n of People with Disabilities v. Hood, 278 F. Supp.
2d 1345 (M.D. Fla. 2003). with Am. Ass'n of People with Disabilities v. Shelley, 324 F. Supp. 2d 1120 (C.D.
systems to be accessible.33 Although a private right of action is not provided in the
statute, the Attorney General’s Office may enforce HAVA or a citizen may file a
complaint in a state-based administrative grievance procedure.34 It also mandates
the Election Assistance Commission (EAC) to conduct research on the feasibility of
various types of election technology, including an analysis of the implications of the
technology for accessibility for voters with disabilities.35 In the aftermath of Shelby,
could the provisions relating to Title II of the ADA or HAVA be subject to further
constitutional challenge by those committed to protecting state sovereignty? Could
new laws requiring stricter forms of identification be enacted which make it more
challenging for people with disabilities to vote?36 Although it should be noted that
that HAVA does not target particular states as does section 4(b) of the Voting
Rights Act, an issue the Shelby majority judgement found to be of concern in
violating principles of equal sovereignty,37 these are not idle queries given the
Supreme Court’s inconsistent attitude toward the ADA as applied to the states and
because in City of Cleburne v. Cleburne Living Centre, Inc.,38 the Court held that
disability discrimination was a classification subject only to rational basis review
when interpreting the Equal Protection Clause.39
In Tennessee v. Lane, a majority of the Supreme Court reversed its trend
toward a more restrictive approach to interpreting the 14th Amendment, holding
that a failure of the State of Tennessee to make state courts accessible to people
with physical disabilities was conduct that Congress could appropriately sanction
pursuant to its Section 5 enforcement powers, abrogating state sovereign immunity
established in the Eleventh Amendment in enacting Title II of the ADA.40 This
contrasts sharply with its holding in Board of Trustees of the University of Alabama
v. Garrett, finding that Title I of the ADA, relating to employment, was not properly
33 Lane, supra note 19, at 829.
35 Tokaji, supra note 28, at 1746-47. However, Republican legislators have sought to abolish the EAC. See
Deborah Barfield Berry, House panel OKs ending Election Assistance Commission, USA Today, (June 5
36 This already seems to be happening in Texas. See Sarah Childress, With Voting Rights Act Out, States
Push Voter ID Laws, (June 26 2013),
37 Shelby, 133 S.Ct. 2612, 2627-28 (2013).
38 473 U.S. 432 (1985).
39 Michael Ashley Stein, Michael E. Waterstone & David B. Wlkins, Cause Lawyering for People with
Disabilities, 123 HARV. L. REV. F. 1658, 1691 (2010)(book review). This contrasts dramatically with other
jurisdictions, such as Canada, which treat all grounds of discrimination equally. See McKinney v.
University of Guelph,  3 S.C.R. 229 (rejecting the Cleburne approach of levels of scrutiny). A
detailed examination of this aspect of the issue is beyond the scope of this Article.
40 541 U.S. 509, 533-534 (2004). A similar counterpoint to the New Federalism trend may be found in
Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003) (ruling that the dependent care
provisions of the Family Medical Care Leave Act were a valid exercise of Congress’ Fourteenth
Amendment powers to combat sex discrimination).
enacted by Congress pursuant to its section 5 enforcement powers.41 George Lane
was a paraplegic who was unable to climb the stairs to reach the county courthouse
when he was compelled to attend court to face criminal charges. After he refused to
be carried up to his trial, he was later arrested and imprisoned for failing to appear
at his trial.42
A broader reading of Lane suggests that it ought to apply beyond simply
access to courts, to encompass lack of access to other services or programs covered
by Title II that impinge on fundamental rights such as voting.43 While I agree with
a broad interpretation of Lane and share the view of many scholars that courts have
failed to properly appreciate the ADA as a genuine civil rights statute and
misinterpreted its reasonable accommodation requirements as a charitable
gesture,44 I would further argue that having a robust record of voter discrimination
and other state-imposed barriers faced by people with disabilities is the key to
convincing courts to find in favour of plaintiffs should voting rights legislation
relating to people with disabilities come under attack.45 Anecdotes of barriers
experienced by people with disabilities at the polls and elsewhere can play a
powerful role in demonstrating to reluctant judges the need for Congressional
action to remove barriers with respect to voting.46 Why are narratives describing
acts of disability discrimination beyond voting barriers so salient for an
interpretation of the jurisprudence that would uphold Title II of the ADA? Lane
indicates that courts will consider discrimination and unequal treatment by
government officials with respect to rights other than the one currently in dispute
where Congress has enacted a statute protecting several fundamental rights. In
Lane, discrimination on the part of states in areas such as abuse and neglect in
state mental health institutions, unjustified confinement and zoning was evaluated
41 Garrett, 531 U.S, at 356.
42 Lane, supra note 19, at 808.
43 See Anita Silvers & Leslie Pickering Francis, A New Start on the Road Not Taken: Driving with Lane to
Head Off Disability-Based Denial of Rights, 23 WASH. U. J.L. & POL'Y 33, 48-55 (2007) (suggesting a
broader reading of Lane implies protection of due process rights).
44 Id. at 38-39 (noting how courts have been wrong in distinguishing the ADA from other civil rights
45 Accord Lane, supra note 19, at 843 (“Lane teaches that where fundamental rights are concerned, the
Court will expand the scope of what evidence it will consider. In addition to unequal treatment in voting,
courts will consider differential treatment in related fundamental rights to gauge the gravity of the harm
Congress attempted to remedy”). For a comparative treatment of the origins of the duty to accommodate
in American and Canadian jurisprudence, see Ravi Malhotra, The Legal Genealogy of the Duty to
Accommodate American and Canadian Workers with Disabilities: A Comparative Perspective, 23 WASH. U.
J.L. & POL’Y 1 (2007) (suggesting the robust duty to accommodate religious minorities in Canadian law
facilitated a better reception on the part of the judiciary to accommodating employees with disabilities
than in the United States).
46 Of course, a Court determined to ignore discrimination may not be persuaded even by voluminous
evidence. This was evident in Shelby itself. See Shelby, 133 S.Ct. 2612, 2636 (2013) (Ginsburg J.,
dissenting) (noting that Congress compiled legislative record of 15,000 pages before reauthorizing Voting
in adjudicating the claim with respect to access to courthouses.47 Hence, a challenge
under Title II of the ADA concerning voting may be fruitfully met by producing
evidence of discrimination against people with disabilities in a variety of areas.
Waterstone makes the further perceptive claim that, in light of the Court’s holding
in Lane, a hypothetical provision for a private right of damages in HAVA would
withstand scrutiny against challenge on federalism grounds.48 I concur and suggest
that the best way to promote disability rights—and limit the damage sustained to
advocates of social justice in Shelby—is to find ways to effectively marshal
convincing evidence of disability discrimination. I now turn to a discussion of how
narratives can help provide the needed evidence to best protect laws that enforce
voting rights for people with disabilities.
II. Narratives and the Law
Narratives are particularly effective at transforming public discourse because
they provide a vivid account of experiences of marginalized people that may not be
commonly known or discussed. The act of narrative itself allows new legal concepts
to develop over time; perhaps the most famous example is how, as more and more
women reported and discussed the inequalities and indignities that they
experienced in the workplace in the form of humiliating and unwanted sexual
remarks, these narratives of women’s experiences of gradually coalesced into the
legal concept of sexual harassment.49 Narratives played a part in a dramatic
transformation in public attitudes and perception from analyzing the possibly
immoral and promiscuous misconduct of a woman alleging sexual harassment to
viewing the situation in terms of a the abuse by men of a power relationship.50
Feminist legal scholars have also used narratives to powerfully convey the horrors
of sexual violence, a topic rarely discussed in the public sphere in the past. Susan
Estrich famously describes her own rape in a piece that proceeds to set out a
framework for sexual assault law reform, adding a vividly personal dimension so
searing that it made it impossible for the reader to ignore the pain and violation she
Richard Delgado has played a major role in advocating counter-storytelling to
disrupt traditional tropes of racist narratives that marginalize the concerns of
people of color.52 He notes how African American slaves had a long history of telling
narratives about their oppression through songs, letters and poetry. Latinos and
47 Lane, supra note 19, at 820-21.
48 Id. at 848-49.
49 IRIS YOUNG, INCLUSION AND DEMOCRACY 72-73 (2000).
50 For a history of this remarkable shift, see Reva B. Siegel, A Short History of Sexual Harassment, in
DIRECTIONS IN SEXUAL HARASSMENT LAW 1, 3-5, Catharine A. Mackinnon & Reva B. Siegal eds. (2004).
51 Susan Estrich, Rape, 95 YALE L.J., 1087, 1089-1091 (1986). For a broader defense of the narrative
method in feminist legal scholarship, see Kathryn Abrams, Hearing the Call of Stories 79 CAL. L. REV. 971
52 Delgado, supra note 18.
Native Americans also have a long tradition of passing down stories of oppression
and the deprivation of their land from generation to generation.53 Critical race
scholar Anthony Farley has brilliantly used narratives from his own childhood
when he was subjected to humiliating racism to explore the notion of race as a form
of sadomasochistic pleasure in one’s own body whereby whites achieve pleasure
through the humiliation of people of color. A highly luminous meditation on the
nature of racism that incorporates the political thought of, inter alia, Frantz Fanon,
Michel Foucault and James Baldwin, Farley simultaneously maintains that the
humiliation is a part of a process that structures a racial hierarchy.54 And Black
feminists have elegantly used the narrative form to highlight the politics of
intersectionality and the alienation that women of color often encounter when
trying to interact with the legal system as they are simultaneously marginalized by
both white feminists and anti-racist movements led by men.55 Narratives enable us
to see that the production of knowledge is inherently political. They can have a
counter-hegemonic ability to subvert the mainstream understanding of society.56
Disability narratives are especially important because many barriers
experienced by people with disabilities generally lie outside the lived experience of
the average person. Many people without disabilities believe stereotypes about the
capabilities of people with disabilities and are likely unaware of the extent of
barriers that remain endemic in American society. Literature as diverse and
canonical as Shakespeare and Melville has portrayed people with disabilities in
ways that are thoroughly dehumanizing and marginalizing.57 David Engel and
Frank Munger effectively employed the life stories of people with disabilities who
had never engaged in ADA litigation to discuss their experiences relating to the
market, gender and religion. They show that there was a recursive and mutually
constitutive relationship between rights and identity. In other words, the mere
passage of disability rights legislation transformed the way people with disabilities
saw themselves even though they never once engaged in litigation. A strong
disability identity facilitated their procurement of rights and how those rights
became active.58 Morgan Rowe and I have recently built on Engel and Munger’s
legacy and, using an adapted version of their methodology, explore the relationship
53 Id. at 2435-36.
54 Anthony Paul Farley, The Black Body as Fetish Object, 76 OR. L. REV. 457, 473-474 (1997).
55 See e.g., PATRICIA WILLIAMS, THE ROOSTER’S EGG: THE PERSISTENCE OF PREJUDICE (1995). For a key
articulation of the theory of intersectionality, see Kimberlé Crenshaw, Mapping the Margins:
Intersectionality, Identity Politics and Violence against Women of Color, 43 STAN. L. REV. 1241, 1273-74
56 Patricia Ewick & Susan Silbey, Subversive Stories and Hegemonic Tales: Toward a Sociology of
Narrative, 29 LAW & SOC’Y REV. 197, 199 (1995).
57 DAVID T. MITCHELL & SHARON L. SNYDER, NARRATIVE PROSTHESIS: DISABILITY AND THE DEPENDENCIES OF
DISCOURSE (2001), at 17-18 (analyzing portrayal of disability in Shakespeare’s RICHARD III and Melville’s
58 Engel & Munger, supra note 16, at 241-42.
between disability narratives and the formation of an advocacy identity in the
Canadian context.59 One of our participants, Lisa, recounts the humiliating barriers
that she experienced at school when the school administrators insisted that she
demonstrate that she was able to safely climb stairs:
My parents were there, and my dad kept saying to me, “Let me
support your hips. Let me do this.” And I said, “No, because if
you touch me and if you let me use you as support, they are going
to see that as sufficient reason to not allow me to do this if I need to.
Yeah, it breaks your heart because you’re my father, and you don’t
want to see me stumble on a flight of stairs, but this could be the
difference between me getting the credits I need to graduate or not.
So just, unless I start falling, just please, I have to do this. It’s going
to hurt, and I’m going to feel it for days, but I need to prove to them
that I’m not unable.60
Lisa’s narrative shows how educational authorities focused on regulating her
physical activities rather than working on improving the accessibility of her school.
David Connor’s study of racialized working class youth in New York City labelled as
having learning disabilities is a particularly striking example of using prose
narratives from a small number of research participants to garner a deep
understanding of the barriers they face. Their daily dilemmas cut across class, race,
gender and disability in complex ways that only a narrative methodology can fully
I suggest that narratives of barriers in voting and beyond would significantly
help protect voting rights laws precisely because narratives operate so powerfully in
influencing decision makers. Whether it is a blind woman robbed of her ability to
cast a ballot for her preferred candidate alone in the voting booth or a man in a
wheelchair who is unable to access a polling station, narratives of voting barriers
provide a rich emotional content that a simple legal argument can never do.
Decision makers need to fully acknowledge and appreciate the impact of barriers on
the dignity of people with disabilities. And given that disability transcends all racial
boundaries, any successful efforts in this regard can only bolster legal strategies to
prevent the disenfranchisement of racialized voters and facilitate vigorous efforts to
ensure that all American citizens can cast a ballot.
In Shelby, the Supreme Court announced a significant retreat from the civil
rights jurisprudence that it had articulated for decades. The majority chose to
59 RAVI MALHOTRA & MORGAN ROWE, EXPLORING DISABILITY IDENTITY AND DISABILITY RIGHTS THROUGH
NARRATIVES: FINDING A VOICE OF THEIR OWN (2013).
60 Id. at 66.
61 DAVID CONNOR, URBAN NARRATIVES—PORTRAITS IN PROGRESS: LIFE AT THE INTERSECTIONS OF LEARNING
DISABILITY, RACE & SOCIAL CLASS (2008).
undergird its reasoning to strike down § 4(b) of the Voting Rights Act through the
acceptance of a vision of an American racial utopia that tragically is yet to exist. It
will require great vigilance on the part of advocates for social justice and equality to
ensure that the same fate does not befall the legal protections enacted to ensure
that people with disabilities can exercise their right to vote.