Law Commons^™

Voting Matters, Wendy K. Mariner

Faculty Scholarship

Elections have consequences—especially for civil rights, social justice, and human rights.

The year 2020 brings another round of elections for president, legislators, governors, secretaries of state, attorneys general, district attorneys, mayors, city council members, school committee members, and even judges. Our elected officials and their appointees decide who pays how much in taxes, what our taxes pay for, what kind of education our children get, what counts as a crime, what agricultural products are subsidized, what the minimum wage shall be, how to conduct the census, who is eligible for Medicaid, SNAP, and WIC benefits, who is admitted into the …

Backsliding: The United States Supreme Court, Shelby County V. Holder And The Dismantling Of The Voting Rights Act Of 1965, Bridgette Baldwin

Faculty Scholarship

The Supreme Court, having found that certain states received unequal treatment under the Voting Rights Act, struck down the Act’s preclearance provision in its Shelby v. Holder holding. The Author, in an effort to critique the conclusion reached by the Court, argues that these states, historically responsible for obstructing the ability of African-Americans to vote, continue to engage in practices that result in voting irregularities and acts of discrimination in the electoral process. Today, this strategic disenfranchisement rears its head in the form of legislation making voting difficult or impossible for many minority voters, a criminal justice system that targets …

Preferential Judicial Activism, Sudha Setty

Faculty Scholarship

The Author examines the Supreme Court’s use of “preferential judicial activism”—whereby justices decide whether to formalistically dismiss cases or instead choose to engage judicial activism based on their policy preferences—through contrasting the Court’s reasoning in Shelby v. Holder with its decisions in cases concerning national security. In Shelby, the majority characterized the Court’s review of the Voting Rights Act of 2006 as necessary given the fundamental rights at stake and the unusually broad reach of the Act in mandating federal jurisdiction over voting matters. However, in national security-related cases in which plaintiffs have alleged violations of fundamental rights, the …

Unmistakably Clear: Human Rights, The Right To Representation, And Remedial Voting Rights Of People Of Color, Matthew H. Charity

Faculty Scholarship

The Author critiques the Supreme Court’s analysis in its Shelby County v. Holder decision, which found the preclearance requirement of the Voting Rights Act unconstitutional by applying a disparate treatment analysis to how States were treated under the Act. Such a reading of the Act makes a number of tacit and explicit assumptions with regard to the choice by the Federal Government and by the States of whose rights governmental actors must protect. The Court reached its conclusion by decontextualizing the Civil Rights movement and the Voting Rights Act from decolonization and post-World War II expressions of human rights, a …