Ten Years Post-Shelby: The Future of Section 2

About the Author: Juliet Beckstrand is a first-year law student at American University Washington College of Law. She graduated magna cum laude from Wake Forest University, majoring in Politics and International Affairs. Prior to law school, she worked in the United States Senate and as a professional researcher. She is currently an intern at the Lawyers’ Committee for Civil Rights Under Law.  She hopes to pursue a career in civil rights advocacy and voting rights.

On November 9, 2012, the Supreme Court granted certiorari in the case of Shelby County v. Holder, considering whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-clearance formula of Section 4(b) was unconstitutional.[1] The state of voting rights in the United States remains uncertain, with recent attempts to strengthen provisions of the Voting Rights Act of 1965 failing to gain bipartisan support in Congress.[2]

In Shelby County, the Court invalidated a key protection established by the Voting Rights Act of 1965—the decision struck down Section 4(b) of the Voting Rights Act, a provision that imposed federal preclearance requirements on jurisdictions that had engaged in prejudicial voting practices.

Prior to the passage of the Voting Rights Act of 1965, many states employed discriminatory voting practices to deny Black Americans the right to vote.[3] Section 4 of the Voting Rights Act established a “coverage formula” that identified states and political subdivisions that had a history of employing racially discriminatory voting practices.[4]  Under Section 5 of the Voting Rights Act, any change made by a covered jurisdiction that affected voting could not be legally enforced until the jurisdiction obtained federal approval.[5]

After the Shelby decision, states formerly under the preclearance requirement immediately began to adopt restrictive voting laws.[6] Texas announced a photo identification law within a day of the Shelby decision, and 2013 alone, over thirty states introduced ninety-two bills restricting voting.[7]

The Department of Justice and voting rights litigators were forced to reconsider how they would challenge discriminatory voting practices in the wake of the Shelby decision, turning to Section 2 of the Voting Rights Act as an alternative.[8]Section 2 prohibits any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color…” [9]

Section 2 is used to challenge discriminatory voting practices after they are in place, whereas Section 5 provided a tool to prevent discriminatory practices before they went into effect. [10] Section 5 placed the burden on states and localities under the preclearance requirement to prove that their proposed change was not discriminatory before the law went into effect, conversely, Section 2 requires that impacted voters demonstrate that a challenged law had a discriminatory result. [11]

As we approach the ten-year anniversary of the Shelby decision, the Supreme Court has called the future of Section 2 into question. Concurring in the case of Brnovich v. Democratic National Committee, Justice Neil Gorsuch and Justice Clarence Thomas signaled that the Court may reconsider the right of private parties to bring lawsuits challenging state election laws under Section 2 of the Voting Rights Act.[12] Historically, both the Department of Justice and private citizens have successfully brought claims under Section 2 to enforce the protections of the Voting Rights Act.[13] If the Supreme Court were to rule that no private right of action exists under Section 2, it may determine that the only party authorized to bring a Section 2 claim would be the Attorney General of the United States.[14]

The Senate Judiciary Committee has reiterated its position that Congress clearly intended the existence of a private right of action under Section 2 during the numerous amendments and reauthorizations of the Voting Rights Act.[15] A private right of action to enforce the protections of the Voting Rights Act has been acknowledged by courts for decades and has been presumed and recognized in every federal Circuit.[16] A decision determining that no private right of action exists under Section 2 would run counter to the legislative history of the Voting Rights Act and judicial precedent.

The Supreme Court has previously discussed the importance of private rights of action to enforce the protections of the Voting Rights Act in the case of Allen v. State Board of Elections in 1969, stating that the ultimate goal of the Voting Rights Act would be obstructed if citizens could only rely on litigation undertaken at the discretion of the Attorney General, highlighting the limited ability of the Department to take action against the numerous state and local laws and regulations enacted each year. [17]

The issue of voting rights has grown increasingly divisive in the ten years after the Shelby decision. In 2006, the House and the Senate reauthorized the Voting Rights Act—including the preclearance requirement—by a significant bipartisan majority. The bill passed the House by a vote of 390-33, and by a vote of 98-0 in the Senate.[18] In contrast, the John Lewis Voting Rights Advancement Act of 2019 received a vote of 228-187 in the House and was not brought to the Senate floor for a vote.[19]

Narrowing the right to enforce Section 2 of the Voting Rights Act would dramatically limit the remedies available to aggrieved citizens seeking relief for voting rights violations. The Attorney General of the United States retains broad discretion, and a law that is enforceable only at the direction of the Attorney General could lead to a lack of enforcement should the Department of Justice deem it unnecessary. During the Bush Administration, the Department of Justice’s Civil Rights Division brought over ten cases raising claims under Section 2 of the Voting Rights Act. Five cases were brought under the Obama Administration, and only one case was brought under the Trump Administration.[20]

State legislatures across the United States are currently considering hundreds of bills that have the potential to restrict voting.[21] The Court’s questioning of whether private citizens can bring suit under Section 2 presents a cause for concern that the remaining protections afforded by the Voting Rights Act of 1965 after Shelby may remain in jeopardy.

[1] Shelby County v. Holder, 570 U.S. 529 (2013).

[2] Carl Hulse, After a Day of Debate, the Voting Rights Bill is Blocked in the Senate, N.Y. Times (Jan. 19, 2022, 7:44 PM), https://www.nytimes.com/2022/01/19/us/politics/senate-voting-rights-filibuster.html.

[3] Farrell Evans, How Jim Crow-Era Laws Suppressed the African American Vote for Generations, History.com (May 13, 2021), https://www.history.com/news/jim-crow-laws-black-vote.

[4] Section 4 of the Voting Rights Act, U.S. Dep’t Just., https://www.justice.gov/crt/section-4-voting-rights-act (last visited Apr. 18, 2022).

[5] Id.

[6] Voting Laws Roundup 2013, Brennan Ctr. for Justice (Dec. 19, 2013), http:/ /www.brennancenter.org/analysis/election-2013-voting-laws-roundup.

[7] Ryan J. Reilly, Harsh Texas Voter ID Law “Immediately” Takes Effect After Voting Rights Act Ruling, Huffington Post (Jun. 25, 2013, 2:04 PM), https://www.huffpost.com/entry/texas-voter-id-law_n_3497724.

[8] Christopher S. Elmendorf & Douglas M. Spencer, Administering Section 2 of the Voting Rights Act After Shelby County, 115 Colum. L. Rev. 2114, 2152-2158 (2015).

[9] U.S. Dep’t of Just., Section 2 of the Voting Rights Act, (Sept. 1, 2021) (on file with author), https://www.justice.gov/crt/section-4-voting-rights-act.

[10] Danielle Lang & J. Gerald Hebert, A Post-Shelby Strategy: Exposing Discriminatory Intent in Voting Rights Litigation, 127 Yale L.J.F.779 (2018).

[11] Id.

[12] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021).

[13] The Use of Section 2 to Secure Fair Representation, Brennan Ctr. Just. (Aug. 12, 2021), https://www.brennancenter.org/our-work/research-reports/use-section-2-secure-fair-representation.

[14] Judge to toss Arkansas redistricting case unless DOJ joins, Politico (Feb. 17, 2022, 9:16 PM), https://www.politico.com/news/2022/02/17/judge-to-toss-arkansas-redistricting-case-unless-doj-joins-00010050.

[15] S. Rep. No. 97-417, at 30 (1982).

[16] Office of U.S. Senator Patrick Leahy, Section by Section Analysis: The John R. Lewis Voting Rights Advancement Act of 2021 (S.4) 117th Congress (2021), https://www.leahy.senate.gov/imo/media/doc/Section%20by%20Section%20Analysis%20Senate%20John%20Lewis%20VRAA.pdf

[17] Allen v. State Bd. of Elections, 393 U.S. 544, 556 (1969).

[18] Actions – H.R.9 – 109th Congress (2005-2006): Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, H.R.9, 109th Cong. (2006), https://www.congress.gov/bill/109th-congress/house-bill/9/all-actions.

[19] Actions – H.R.4 – 116th Congress (2019-2020): Voting Rights Advancement Act of 2019, H.R.4, 116th Cong. (2020), https://www.congress.gov/bill/116th-congress/house-bill/4/all-actions.

[20] Cases Raising Claims Under Section 2 of the Voting Rights Act, U.S. Dep’t Just.,  https://www.justice.gov/crt/cases-raising-claims-under-section-2-voting-rights-act-0 (last visited Apr. 18, 2022).

[21] Voting Laws Roundup, Brennan Ctr. Just. (Dec. 21, 2021), https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-december-2021.