“Throwing Away Your Umbrella in a Rainstorm”: Texas in the Wake of Shelby County v. Holder

Abstract

Between 1965 and 2013, Section 5 of the Voting Rights Act prevented jurisdictions with a history of voting discrimination from enforcing discriminatory voting changes. Under Section 5, jurisdictions that were covered by Section 4 of the Voting Rights Act were required to submit all voting changes to the Justice Department for preclearance. In the nearly half century that it was active, this method proved to be an effective approach to combatting voting discrimination. It enabled the federal government finally to keep pace with the southern states, which had displayed great ingenuity and tenacity in their routine attempts to thwart federal voting protections. In 2013, the Supreme Court effectively incapacitated Section 5. In Shelby County v. Holder, the Supreme Court struck down Section 4 of the Voting Rights Act. This rendered Section 5 powerless, as there were no longer any jurisdictions subject to its authority. Shelby County was a turning point in voting rights enforcement. The decision meant a return to the judicial approach that had been used before 1965 and deemed inadequate. Since Shelby County, the states and counties that were formerly covered by Section 4 have been able to implement voting changes without having to receive preapproval from the federal government. The remaining obstacle to their full impunity is Section 2 of the Voting Rights Act, which allows lawsuits to be brought against discriminatory voting changes. Undoubtedly, Shelby County has altered the voting rights landscape. Thousands of states, counties, cities, and even school districts have the freedom to enact the voting changes they wish for the first time in nearly half a century. This thesis explores the impact of Shelby County so far and whether Section 2 litigation has been, and will be, an effective substitute for preclearance. By looking at recent cases of Section 2 litigation in Texas, I hope to begin to understand to what extent Shelby County opened the floodgates for discriminatory voting changes and how Section 2 will fare as a barrier to voting discrimination.