In 2013, the U.S. Supreme Court struck down the coverage formula of the Voting Rights Act by a narrow margin of 5-4 in Shelby County v. Holder. The coverage formula designated which states and local jurisdictions with histories of racial discrimination in voting were required to submit changes to their voting laws, practices and procedures to the Department of Justice or the D.C. Court for preclearance prior to going into effect.
For nearly 50 years, this preclearance provision helped ensure that all eligible voters, regardless of their race, were able to meaningfully participate in the political process. However, following this disastrous decision, states and local jurisdictions acted with impunity by implementing onerous voter ID laws and discriminatory redistricting maps that previously would have been blocked by the Department of Justice. A single additional justice voting in favor of upholding the coverage formula could have prevented these discriminatory laws and stopped 2016 from marking the first presidential election in over 50 years without the full protection of the Voting Rights Act.
Yet, this is not what happened. Instead, five justices in Shelby County found that the coverage formula was outdated and therefore violated the “equal sovereignty of the states.” However, this essentially legislative determination by the Court flew in the face of more than 15,000 pages of congressional findings based on 20 hearings and testimony from more than 90 witnesses that had led Congress to conclude that the coverage formula was still applicable. In fact, the coverage formula was reauthorized four times—in 1970, 1975, 1982 and 2006—with overwhelming bipartisan support in Congress, confirming the clear congressional findings that it was still necessary.
Outraged by the Court’s logic, Justice Ginsburg wrote a 37-page dissent in which she correctly proclaimed that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Indeed, if one justice had switched sides, Justice Ginsburg’s dissent could have represented the majority opinion and the preclearance provision would still be in effect.