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“Shelby County v. Holder:” How the Supreme Court attacked Black voting rights

Dec 14, 2022

Editor’s note: Beginning with overturning Roe v. Wade, the ultra right-wing Supreme Court continues to attack hard-won and elementary democratic rights in the United States, from affirmative action to the Indian Child Welfare Act. The following article is the second in our series, “Crimes of the Supreme Court,” that demonstrates the fundamentally reactionary and anti-democratic nature of the Supreme Court. By examining key decisions in the Court’s history, we explain their historical and political context, explain the legal concepts and frameworks used to justify their decisions, and lay out their implications for later cases. Our second entry focuses on a 2013 Supreme Court ruling that gutted the Voting Rights Act of 1965 by declaring a key section of the Act unconstitutional, exempting former Jim Crow states from requiring federal approval before implementing changes in voting procedures.

Introduction

In 2013, five unelected judges gutted the right to vote for tens of millions of African Americans and others. The Supreme Court’s ruling in Shelby v. Holder overturned a key provision of the Voting Rights Act of 1965 (VRA) that prevented voter suppression. That provision—outlined in Section 4(b) of the Act—required state and local governments with a documented history of racism to submit any changes to their electoral laws for pre-approval by a federal agency. A single court case, heard in in a room where no cameras are allowed, stole from millions a landmark protection of the fundamental right to a vote.

The Voting Rights Act, a central piece of legislation that helped end legal apartheid in the United States, was a historic achievement of the Black struggle. Faced with growing internal resistance and international pressure, the ruling class made a tactical concession and hurriedly passed the VRA in 1965 amidst growing resistance. When enforced, the law was effective. Often state legislatures would drop a proposed racist change after a simple request for more information from a federal agency.

The overturning of Section 4(b) of the VRA was an immediate victory for the right wing. Racist governments could now cut voters by eliminating early voting; eliminating polling places; forcing people to wait in line for hours to vote; de-registering individuals on flimsy pretenses; and more. Charges of voter discrimination now had to be proven on a costly individual basis that could be tied up in court proceedings for years.

The Voting Rights Act broke the legal codes excluding Black Americans from the vote but did not eliminate anti-Black oppression. Social consciousness during the 1960s was dramatically altered as a result of the political mass movement, but capitalist property relations and the white supremacist structure did not change.

Shelby v. Holder: A deliberate attack on voting rights

Racist opposition to the Voting Rights Act slowly yielded as decades cemented the gains into the accepted norm. When the Act came up for renewal by Congress in 2009, it passed unanimously. The right wing could not openly oppose such a popular law. Their narrative instead centered on the claim “the South has changed.”

The lawsuit that swept away a central element of the VRA was part of a sophisticated and deliberate attack to roll back democratic rights won through struggle. A handful of extreme right-wing capitalists fund operations that fabricate cases to argue before the Supreme Court; plaintiffs are carefully selected and matched with high-powered lawyers in an attempt to use the judiciary to enact deeply unpopular policies—in this case, gutting the Voting Rights Act.

Calera is a small city within the small county of Shelby, Alabama. In 2008, the city attempted to pass a racist redistricting measure that would have eliminated the only majority-Black voting district. Under Sections 4(b) and 5 of the VRA, this change had to be reviewed by the Department of Justice. The DOJ rejected the plan. After this denial, a right-wing activist group cold-called the county’s attorney, who agreed to become the figurehead of the case. Shelby County was matched with a specialized Washington law firm, who filed suit in the U.S. District Court for D.C. against Attorney General Eric Holder. The lawsuit claimed that both Sections 4 and 5 violated the constitutional rights of the county. The District Court denied their claim and upheld the Act. This was part of the plan. Shelby plaintiffs appealed their case to a higher court the following year, and the U.S. Court of Appeals again denied their claim.

In 2012, out of the tens of thousands of available cases, the Supreme Court chose to take up Shelby v. Holder. The specific issue in question: Section 4(b) of the VRA, which identified states and counties with documented acts of racist voter suppression, and Section 5, which made it so any changes made to the electoral laws by those local governments had to be approved by the Department of Justice. Bourgeois culture portrays the Supreme Court as a lofty place where monologues are eloquently recited. Dispassionate, cloaked servants of the Constitution weigh the merits of each and deliver an apolitical, and correct, verdict. So goes the carefully-developed image. In reality, Supreme Court justices are political actors. Appointed for life, accountable to no one, so-called “justices” are not even bound by the Judicial Code of Conduct that covers all federal judges [1].

Hearings of the Supreme Court are themselves rushed affairs. The Court generally gives each side one hour to make their oral arguments with an additional 30 minutes for cross-examination. Just three hours affect the fate of more than 300 million. Their questions and comments, sometimes littered with bizarre hypothetical scenarios, expose their own racist views. The comments of Supreme Court Justices during the Shelby v. Holder oral arguments in 2013 are deeply convoluted and racist. Far right judge Antonin Scalia remarked, “Whenever a society adopts racial entitlements,” said Scalia during the Shelby hearings, “it is very difficult to get out of them through the normal political processes… it will be reenacted in perpetuity unless – unless a court can say it does not comport with the Constitution” [2]. What Scalia meant is that once the right of Black people to vote was established, no elected body would be able to repeal it, thereby leaving this task to the Supreme Court.

John Roberts, the highest-ranking judge in the country, argued that since racism exists in other states, 4(b) should not single out racist governments in the South. The Voting Rights Act was so successful, according to Roberts, that it was no longer needed. Racist voter discrimination was a thing of the past now that Black people were registering at similar rates to the white population.

New York, Mississippi, North Carolina, and California submitted an amicus briefs to the Supreme Court in support of the VRA. All four state governments were bound by Section 5 as a result of the 4(b) determination. This step, they noted, did not impose a burden on them.

Map of Section 5 Covered Jurisdictions. Department of Justice.

On June 25, 2013, the Supreme Court issued its ruling with Roberts writing the majority opinion. Section 4(b) of the Act, which defined the formula to require pre-approval, violated the “equal sovereignty” of all states and was thus “unconstitutional.” Section 5 was noted as “a drastic departure from basic principles of federalism,” but was left in place; though, rendered inoperable by the repeal of 4(b). Without a formula to determine which states must seek pre-approval to change their voting laws, the pre-approval process—while not explicitly deemed unconstitutional—was no longer serving its intended purpose to preempt the adoption of racist voting restrictions.

“At the same time,” continued Roberts, “voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.” If disparate treatment of the States was truly the constitutional issue at stake in Shelby v. Holder, any reasonable person might conclude that all states should be required to receive pre-approval from the Justice Department for any changes to their voting laws. The Court, however, made no such suggestion.

Eliminating the formula in section 4(b) removed mandated enforcement for the states and counties covered. The deterrence against racist measures was broken. Stopping voter discrimination could now only happen as a result of an individual lawsuit.

For Clarence Thomas, the ruling did not go far enough. “Today, our Nation has changed,” wrote Thomas in his concurrence [1]. Not only should those states not have to go through pre-clearance, but no state ever should be submitted to oversight. For Thomas, it was not sufficient to throw out 4(b); Section 5 had to go.

In her dissent, Ruth Ginsberg commented on the existing racism within Alabama, referencing racist state Senators who “derisively refer to African-Americans as ‘Aborigines,'” and who in secret recordings slandered increased Black voter turnout as,“‘[e]very Black, every illiterate’ would be ‘bused [to the polls] on HUD financed buses'” [4].

The Supreme Court Justice’s comments and their decision to significantly blunt the power of the Voting Rights Act reveal the racist logic at the root of their decision. The right wing of the ruling class had its sights set on repealing the VRA since its passage; because the Voting Rights Act has massive popular support, the Act could not be repealed legislatively. Instead, the far right set their sites on the Court as the best mechanism for establishing minority rule by disenfranchising Black voters.

Apartheid USA and the struggle for the vote

The list of states and localities required by Section 5 of the Voting Rights Act to receive pre-clearance for changes to their voting laws were selected based on their history of discrimination. It is especially outrageous then that the Supreme Court Challenge to the Voting Rights Act came from a small administrative division in Alabama, a state with some of the fiercest repression against the Black liberation struggle in the lead-up to the passage of the VRA.

Before the passage of the Voting Rights Act in 1965, voting rights for Black people were so restricted and repressive that the act of going to vote carried within itself a militancy that threatened white-supremacist structures. Even as voting was supposedly legal, racist legal codes paired with racist legal violence denied Black people the vote. “In order to vote in Alabama,” wrote educator and community activist C. G. Gomillion in 1957, “one is legally required to possess certain specified qualifications. One must have been a bona fide resident within the State for two years, within the county for one year, and within the precinct or ward… for three months” [5].

Black people who registered to vote had to fill out a questionnaire prepared by the Justices of the Alabama Supreme Court. Some counties’ electoral officials would make up additional questions and force Black people to read and interpret parts of the Constitution [6]. If the Black person answered the questions to the white election officials’ satisfaction, the applicant would then need to swear allegiance to the U.S. and Alabama Constitutions, and then swear they were not nor had been a member of the Communist Party. Passing interrogations and pledging fealty, however, were not enough. “[T]he applicant must produce a “duly registered, qualified elector” who lives in the same county,” and who would confirm and vouch for the applicant. “After the voucher has testified, the application is ready for review” [7]. The review itself was conducted by the same racist electoral board only too willing to deny and delay granting suffrage.

“In many cases,” noted Gomillion, “if a Negro applicant fails to answer every question, or if he makes a single mistake, the application is not approved, the applicant is not notified, and is not given an opportunity to complete or correct his application” [8]. Many states, including Alabama, additionally levied poll taxes barring Black people and poor whites alike from voting. Another exclusionary technique was demanding that African Americans guess the number of jellybeans in a large bottle, an obviously impossible task.

The state of apartheid could only be maintained through acts of state-sponsored terrorism. In addition to the many restrictions on voting, Ming wrote, “there was the hooded, but not veiled threat of the Ku Klux Klan and similar groups” [9]. By the 1960s, racist mobs had murdered more than 4,000 Black men, women, and children, in addition to some white supporters. Black communist revolutionary Harry Haywood wrote of the state-sanctioned violence: “This ruling class savagery has a purpose: to strike terror into the hearts of the oppressed Negro people so that they dare not strike out for liberation” [10]. Lynchings, explained Haywood, played a vital role in dividing workers. The state could recruit mobs of racist white workers to carry out repression in support of the state. African Americans were deprived of the right to unionize and forced into segregated and grossly inferior realms of life in public transportation, jobs, housing, healthcare, and more.

Growing internal resistance was galvanized by the wave of social revolutions exploding throughout the Global South. The heroic anti-colonial struggle and the global fight against U.S. imperialism reverberated in the consciousness of Black Americans fighting for their own self-determination. In its global class struggle with the socialist camp, the maintenance of a legalized apartheid system became increasingly untenable for the U.S. ruling class. “This nation is fighting colored peoples by arms and money in Asia and Africa,” wrote W. E. B. Du Bois of the United States in 1952, Black people “want to get out of all participation in this attempt to reduce colored folk the world over to subordination” [11].

It was the masses of people that forced apartheid in retreat. “What defeated the racists was not the Supreme Court or any branch of government, but a mass movement. Hundreds of thousands of African Americans and supporters waged a heroic struggle confronting police dogs, beatings, jailing, torture and death to bring down Jim Crow tyranny in practice” [12].

“Bloody Sunday,” Ted Ellis. Wikimedia Commons.

Alabama would be a turning point in the mass movement for Black liberation when marchers led by Dr. Martin Luther King, Jr., set out from Selma to demand voting rights in 1965. The marchers were brutalized and viciously attacked by local and state police. “The brutal pogroms perpetrated by Alabama racists are continuing,” reported Soviet newspaper Pravda in 1965. “They are trying by all possible means to remove Blacks from participating in the upcoming elections. In response to their protests, the racist authorities of Alabama are carrying out reprisals: they disperse peaceful demonstrations, beat and arrest Negroes.”

The Bloody Sunday attacks on the Selma marchers in 1965 became a flashpoint of struggle. Rather than stopping, the marches grew day by day. Racist repression was quickly becoming an international embarrassment for the United States, which was carrying out an invasion of Vietnam at the same time.

The ruling class feared the growing powder keg of Black resistance would ignite into revolution. Revealing the ruling class’ anxiety, President Lyndon Johnson called on Congress to pass the Voting Rights Act, and even called Selma a milestone in “man’s unending search for freedom.” With a speed only fearful capitalists can muster, Congress passed the Voting Rights Act of 1965 and the Twenty-Fourth Amendment outlawing the poll tax.

The Act was a tactical concession granted in the face of a militant struggle for liberation. The fighters in the movement for Black liberation were radical, militant people. They articulated and fought for a program to transform the U.S. into a more democratic society. They knew the Voting Rights Act wouldn’t bring full equality, but it represented a major concession attacking the legal framework of anti-Black exclusion from political life.

Conclusion

When the Shelby ruling came down in 2013, the impact was immediate. Within hours of the ruling the government of Texas announced plans to implement a racist law previously blocked by the Act. Weeks later, the North Carolina legislature passed a wide-ranging and racist voter reduction bill eliminating Sunday voting; ending pre-registration for teenagers; requiring voter IDs at polling places; prohibiting counties from extending poll hours on Election Day, even in extraordinary circumstances; and allowing any registered voter of a county to challenge the “eligibility” of another voter [13].

In the years since the ruling, many states have enacted restrictive voting laws and gerrymandered their districts to undemocratically mute Black, Latino, and progressive votes.

In a testament to the Act’s popularity, Scalia during the Shelby hearings commented that Congress would never roll back the Voting Rights Act. Any elected official who voted against the law would surely lose their next election. “Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future” [14]?

Scalia was right. Only the Supreme Court could have overturned this historic reform. That the vector for the attack came from Alabama was symbolic yet incidental. The campaign to overturn a law that enjoyed near-universal support was sponsored by just a handful of racist billionaires and succeeded through an undemocratic judicial dictatorship.

The walls of the Supreme Court hold carvings of the “great lawgivers of history” in ivory Spanish marble [15]. These figures are the ruling classes of society from the past 5,000 years. American enslaver and fourth Chief Justice John Marshall stands next to Napoleon. Spartan ruler Lycurgus, whose society had as its foundation the enslavement of its neighbors, shares a frieze with Draco, an Athenian ruler from whom the term draconian derives. At each ruling the hideousness of class society gazes on. These “great” figures bear testament to the role of the Court in maintaining stability for the domination of the vast majority by a tiny few.

The Supreme Court is not an impartial or neutral actor separated from the political life of the country. The passage of the Voting Rights Act was an outcome of the militant fight against the apartheid system. It could not be overturned legislatively, so the racist, right wing of the U.S ruling class used the dictatorship of the Court to do what elected officials could not—rollback voter protections against discrimination. As working-class and oppressed people in the U.S. confront an all-out assault on our basic democratic rights, we can take important lessons from the struggles for Black liberation. Voting rights were won through struggle and must be secured, once and for all through struggle.

References

[1] Coalition for Court Transparency, “The U.S. Supreme Court: Facts on Technology, Transparency & Ethics,” Open SCOTUS, 23 September, 2014. Available here.
[2] Shelby County v. Holder, 570 U.S., 529 (2013), transcripts. Available here.
[3] Ibid.
[4] Ibid.
[5] C.G. Gomillion, “The Negro Voter in Alabama,” The Journal of Negro Education 26, no.3 (1957): 283.
[6] Ibid., 283.
[7] Ibid.
[8] Ibid., 284.
[9] William R Ming, Jr., “Changes in Legal Status of the Negro,” in A Documentary History of the Negro People in the United States 1951-1959, ed. H Aphtheker (New York: The Citadel Press, 1966), 55.
[10] Harry Haywood and Milton Howard, Lynching (New York: International Publishers, 1932), 5.
[11] W.E.B Du Bois, “The Negro Voter and the 1952 Elections,” in A Documentary History of the Negro People in the United States 1951-1959, ed. H Aphtheker (New York: The Citadel Press, 1966), 109.
[12] Liberation School, “Sixty Years After Brown v. Board of Ed.,” Liberation School, 12 August 2014. Available here.
[13] Liberation Staff, “After Racist Supreme Ct. Ruling, States Launch New Attack on Black Voting,” Liberation News, 26 August 2013. Available here.
[14] Ibid.
[15] “Courtroom Friezes: South and North Walls,” Supreme Court of the United States. Available here.