If NAME IT was the pass in an anti-democratic alley-oop, Shelby County v. Holder (2013) was the dunk. In Shelby CountyThe court cited the nonsense it first encountered in NAME IT as justification for repealing Section 4 of the VRA, which designated counties with a history of discrimination to which the pre-approval requirements of Section 5 applied. Shelby County did not technically repeal Section 5, but it might as well have done so: By declaring the formula in Section 4 unconstitutional, Section 5 became useless and states could implement new discriminatory policies without federal oversight.
The opinion in Shelby County shows what Daley calls a “general impatience” with the end of Section 5, which Roberts said “should only be temporary.” It relies on misleading statistics that downplay the continued presence of racial discrimination in elections and inflates a vanishing gap in voter turnout without acknowledging that the election of President Barack Obama was a historic outlier. “Our country has changed,” Roberts wrote, as if voters of color must pay for whites’ misguided optimism about how long it would take to end racism.
Finally, Roberts underestimated the damage caused by repealing Section 5 by pointing out that another part of the Voting Rights Act, Section 2, remains in force. While Section 5 prevented new Section 2 prevented racist laws from taking effect in the affected jurisdictions and put an end to racist laws in place at the time the law was passed by generally prohibiting state and local governments from taking actions denying the right to vote on the basis of race. “Section 2 is permanent, applies nationwide, and is not the subject of litigation in this case,” Roberts wrote.
