In Shelby’s Wake: Confronting the Third Generation of Voting Barriers

Meghan Kestner is a fourth-year at Stanford University, majoring in History. She would like to thank Rebecca A. Maurer.

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In June 2013, the United States Supreme Court in Shelby County v. Holder[1] struck down Section 4 of the Voting Rights Act of 1965 (VRA), rendering the landmark civil rights law largely impotent. The VRA prohibits state and local governments from imposing any “voting qualification or prerequisite to voting, or standard, practice, or procedure … to deny or abridge the right of any citizen of the US to vote on account of race or color.”[2] Section 4 establishes the coverage formula designating that certain states and counties with a history of voting discrimination are subject to Section 5 preclearance requirements. Under Section 5, the jurisdictions identified in Section 4 must appeal to a panel of judges on the DC federal court (“judicial preclearance”) or to the U.S. Department of Justice (“administrative preclearance”) before making any changes to election procedures. Section 4 is therefore the mechanism by which the Section 5 preclearance requirements function; without Section 4, now invalidated by the Supreme Court, those jurisdictions are no longer covered by Section 5 protections. Observers claim that the Shelby ruling will potentially disenfranchise citizens whose right to vote was previously protected by Section 5 of the VRA.[3]

By August 2013, conspicuously only two months after the Shelby decision, the North Carolina state legislature passed an omnibus election law that opponents claim will restrict access to the ballot.[4] The Voter Information Verification Act (VIVA)[5] implements unprecedented changes to election practices;[6] it is a uniquely bold measure in its wide-ranging provisions that transform established election procedures. Particularly controversial provisions of the law require photo identification for voters, shorten the early in-person (EIP) voting period, and eliminate same day registration (SDR). This article will use the North Carolina law as a framework to evaluate the recent changes to the VRA. Specifically, would VIVA survive pre-Shelby preclearance requirements under Section 5? Would VIVA violate the VRA as it stands in the wake of the Shelby decision?

A preliminary answer to the second question should be noted. Specifically, the law may still violate the VRA under Section 2, a provision untouched by the Shelby decision. Unlike Section 5, Section 2 applies nationwide. Section 2 establishes a cause of action for individual plaintiffs to initiate lawsuits against changes to voting procedures that, “in the totality of the circumstances,” may cause minority voters to have “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”[7] In fact, the Department of Justice (DOJ) has recently signaled that it will move forward with this tool to challenge VIVA, alleging that certain provisions of the law illegally obstruct voting rights even in the wake of Shelby.[8]

Part I of this article examines the differences between Sections 2 and 5, how they operated in tandem in the pre-Shelby legal landscape, and how Section 2 may operate alone post-Shelby. Part II offers a brief background on the features of the three controversial provisions of VIVA, and evaluates how similar provisions have previously fared with Section 2 challenges and Section 5 applications for preclearance before Shelby. Part III introduces the concept of third generation barriers to the franchise to explain why the civil rights community should not focus its attention on re-establishing a Section 4 preclearance formula to re-activate Section 5. This article concludes with a proposal to transform the voting rights framework from one of legal protection from discrimination for race and language minorities to an affirmative, substantive right to vote for all American citizens.

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  1. 133 S. Ct. 2612 (2013).  ↩

  2. 42 U.S.C. §§ 1973–1973aa–6 (2012). The VRA also protects language minorities.  ↩

  3. Editorial, An Assault on the Voting Rights Act, NY Times (Jun. 25, 2013), online at  ↩

  4. Jamelle Bouie, North Carolina’s Attack on Voting Rights, The Daily Beast (Aug. 13, 2013), online at  ↩

  5. Voter Information Verification Act, 2013 N.C. Sess. Laws 589.  ↩

  6. Monster Law: More Money, Less Voting, Democracy North Carolina, online at  ↩

  7. Id.  ↩

  8. Josh Gerstein, Justice Department Challenges North Carolina Voter ID Law, Politico (Sept 30, 2013), online at justice-department-north-carolina-voter-id-law–97542.html. Section 2 suits are also being brought by the NAACP, the Advancement Project, the ACLU, the ACLU of North Carolina Legal Foundation, the League of Women Voters of North Carolina, and the Southern Coalition for Social Justice.  ↩