Thoughts on the U.S. Supreme Court's Decision in Shelby County v. Holder

June 26, 2013 2:18:39 AM PDT
My personal involvement with voting rights cases started in 1971 when a couple of young lawyers, working pro bono, asked me to help them challenge the state senate map passed by the Texas Legislature.

I agreed to help David Berg and Stuart Nelkin because I thought the plaintiffs they represented -- African Americans in Houston -- had a very legitimate beef. Six years earlier the federal courts had required Texas to redraw congressional and legislative lines to equalize population following the one-person, one-vote decisions of the early 1960s. Harris County, which had only one of 31 senate districts, was entitled to four seats based on its population.

One of the new districts was won by Barbara Jordan, who became the first Black senator in Austin since Reconstruction. Senator Jordan quickly established herself as a powerful member and when the new congressional maps were drawn after the 1970 census, a new 18th District was created by the Legislature that closely tracked her existing senate district. This pretty much guaranteed Ms. Jordan could move from Austin to Washington, D.C. after the 1972 election. But, while the African American voters in Houston now had an opportunity to elect a candidate of their choice to Congress for the first time, the existing mostly Black senate district had disappeared Hence the lawsuit claiming the new senate lines discriminated against local Black voters by dismantling the old Jordan district, thus violating Section Two of the Voting Rights Act.

A trial was held in federal court in Austin. We lost, possibly because the plaintiffs' expert (me), was not up to speed, possibly for other reasons like the elderly federal judge sleeping through much of the plaintiffs' trial testimony.

After that inauspicious start, I have continued as an expert witness in a dozen or so cases since 1971, including three trials in 2011-2012. Having been involved in redistricting following release of the decennial censuses in 1971, 1981, 1991, 2001, and 2011, I have some insight as a political scientist, not a lawyer, in how the voting rights law works in practice. Today, I'd like to make a few political points about the Shelby County case.

One, while the Supreme Court did not directly strike down Section Five which requires Alabama, Texas, and other covered jurisdictions to get approval from the U.S. Department of Justice or a federal court in Washington, D.C. before putting any electoral changes into effect, today's ruling has that effect. There is zero chance the House of Representatives, with many Republican members from the covered states, will put new standards in place and thus preserve Section Five.

Two, this decision raises the stakes in future presidential elections for a couple of reasons. Shelby was decided by the usual five/four vote, with the five Republican appointees in the majority against the four Democratic nominees. Maintaining, expanding, or flipping that majority will likely depends on who wins the White House in 2016 and 2020. And with Section Five effectively gone, much more will now depend on who controls the Voting Rights Division within the Department of Justice (DOJ). If minority plaintiffs have a friendly DOJ as is the case today, the vast resources of the federal government can mitigate the costs of bringing challenges under Section Two of the VRA. Conversely, if the DOJ is not sympathetic, bringing challenges will be more difficult for protected minorities since they will have to cover up-front costs.

Three, while most of the immediate reaction has focused on Black voting interests (Congressman John Lewis of Atlanta said Shelby "drove a stake through the heart of the VRA"), the bigger losers, in my opinion, are Latinos. Blacks, as Chief Justice Roberts noted in his majority opinion, register and vote at high levels, and are very cohesive at the polls. This means the existing Black congressional and legislative districts, while not protected by Section Five any more, are effectively protected by political reality. Dividing up existing African American districts, which are heavily Democratic, would make incumbent Anglo Republicans in adjacent districts much more at risk. No rational Republican member of Congress, for example, wants any part of the local districts now represented by Sheila Jackson Lee or Al Green. .

Latinos are in a very different place. While their population, voting age population (VAP), and citizen voting age population (CVAP) are soaring, Hispanics have far lower levels of registration and voting than do Blacks, and are not as cohesive at the polls. Given those realities, they are much more subject to redistricting maps that diminish their opportunity to elect candidates of their choice without the protection of Section Five. This is hugely important in Texas, where the Hispanic population will pass the Anglo percentage in 2016 or 2017, but where Latino political power lags far behind.

That being the case, the Shelby decision makes the three-judge panel in San Antonio that has the Texas Section Two case even more important. Two of the three judges are Republican appointees. But two of the three judges are Mexican Americans. Stay tuned for further developments.

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