Mapping a Post-Shelby County Contingency Strategy

Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, Mapping a Post-Shelby County Contingency Strategy, 123 Yale L.J. Online 131 (2013).

Abstract:  This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the VRA after Shelby County v. Holder. We argue that voting rights activists ought to be prepared — because of developments in constitutional law, or politics, or political practice — for a future in which section 5 is not part of the voting rights landscape. If the Court strikes down section 5, an emerging and fragile ecosystem of private entities, non-judicial institutions, and organized interest groups of various stripes, may be willing and able to mimic the elements that made section 5 an effective regulatory device for protecting the rights of voters of color. In this model, the primary actors are private or civic intuitions. We term this “the private protection model.” 

In other contexts, these civil society or third-party groups might be identified as nongovernmental entities. They include public-interest groups, advocacy organizations, political parties, political committees and the like. For ease of exposition we broadly identify them here as institutional intermediaries. 

These institutional intermediaries may be well positioned to address the vexing questions posed by voting rights policy in a period of transition: How much racial discrimination do we have? Who are the bad actors? Should we have a universal voting rights policy, a race-based one, or one that protects against disenfranchisement motivated by partisanship and ideology?

As voting rights activists plot a post-Shelby County contingency strategy, they should both account for institutional intermediaries and think about the types of changes that could enhance the ability of these groups to better protect voting rights, now and in the future.

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