The Reconstruction Amendments
One interesting aspect of both decisions is how they both negated the Reconstruction amendments, namely the Thirteenth, Fourteenth, and Fifteenth Amendments, despite ample evidence showing their relevance and necessity.The plaintiff in Plessy argued violations of both the Thirteenth and Fourteenth Amendments. The Court decided against the plaintiff on both issues, stating that the Thirteenth Amendment was too clear for argument and that the enforcement of the separation of races did not automatically violate the Fourteenth Amendment. This decision came in spite of the fact that the statute in question was based on the premise that colored citizens were so inferior that they were not allowed to sit in public coaches occupied by white citizens. In like manner, the Shelby County decision disregarded Congress’s 2006 reauthorization of Voting Rights Act, which was originally put in place to give effect to the Fifteenth Amendment. The Court concluded that the formula did not address the current conditions and, as a result, ruled for the plaintiff, despite the thousands of pages of evidence and countless witnesses that were considered by Congress in its decision to reauthorize the 2006 act.
Political Climate Leading to the Decisions
It is also important to look at the events that led both cases to the steps of the Court. Leading up to the Plessy decision, there was the Reconstruction period where African Americans made major strides in a very short period, ascending from slaves to elected officials. (See Phillip Dray, Capitol Men: The Epic Story of Reconstruction Through the Lives of the First Black Congressmen, at ix (2008).) However, shortly after the Reconstruction period, a massive backlash from constituents for Southern states resulted in segregation laws, such as the one involved in the Plessy case, which all but stopped any progress made by communities of color (See id. at x–xi, 313–15). In a similar manner, the Shelby County case came on the heels of the progress made as a result of the civil rights movement, which is probably most evident by the fact that there was an African American president in office and that the first African American attorney general was defending the case. In the midst of this progress, though, there had also already been a pushback by some majority citizens complaining about reverse-racism issues. Just four months before the Shelby County hearing, the Court had already heard Fischer v. University of Texas at Austin,133 S. Ct. 2411 (2013), which challenged the constitutionality of affirmative action in higher education. The Court stressed in the Shelby County case that the country has changed enough that the former formula of the Voting Rights Act is no longer valid, and the Court suggested that Congress needed to create a new formula. However, with the recent climate in Congress, getting even simple legislation passed has become problematic, as was seen in the 2013 government shutdown. That said, there is not much hope that Congress will agree on a complex issue like the formula of the Voting Rights Act anytime soon.
It is noteworthy that the Shelby County decision, like the Plessy decision, also coincided with heightened controversy over the issues involved. Plessy came at a time where there were many laws that negatively affected the rights of people of color. Shelby County came at a time where some of the most controversial laws were being passed since establishment of the Voting Rights Act. In particular, voting identification laws that disproportionately affected minorities appeared in numerous states before the Shelby County decision. Some of these voter-identification laws have been so strict restrictive that they have even caused problems for some of the people on the ballot, including the top two candidates in the Texas governor 2014 election, Greg Abbott and Wendy Davis. Ironically, the former has been one of the biggest supporters of the law.
The most troubling issue that has resulted from the Shelby County decision is the removal of the safety net of the federal government reviewing laws that negatively affect disenfranchised citizens before they go into effect. This is particularly an issue because, as Justice Ruth Bader Ginsburg discussed in her dissent, Congress had already determined in 2006 that the Voting Rights Act was still necessary, and reauthorized its use for an additional 25 years. Now the safety net of the federal government has been removed, and addressing laws that are discriminatory has now been shifted to the responsibility of citizens through after-the-fact litigation. Meanwhile, states such as Texas have gone full steam ahead with actions that would have likely not been cleared under the Voting Rights Act before the Shelby County decision. Texas announced almost immediately its plans to move forward with its extremely restrictive voter-identification laws that the U.S. Department of Justice had stopped from going into effect because of their discriminatory impact. Also, the mayor of the Pasadena, Texas, proposed a redistricting measure that would make it more difficult for people of color to be elected. These actions would have been blocked by the federal government before the Shelby County decision, but now that the key provisions of the Voting Rights Act have been undermined, they will have to go through the long process of litigation.
Glancing Back While Moving Forward
George Santayana put it best in his book The Life of Reason, with the statement, as was quoted by the four dissenting Justices in the Shelby County decision in their dissent, “[t]hose who cannot remember the past are condemned to repeat it.” The majority of the Court has ignored the past, and as a result we have seen discrimination rear its ugly head once again throughout various parts of our nation. As we move forward as a society, we must remember the lessons learned in the past and fight against repeating the mistakes, to avoid unnecessary suffering. Let us hope that this time, reform that ensures the right of all people comes in less time than the 58 years it took to overrule the Plessy decision.
Keywords: litigation, access to justice, Plessy v. Ferguson, Shelby County, Voting Rights Act, voter identification
Danyahel Norris is an intellectual property attorney and a legal research instructor at Thurgood Marshall School of Law on the campus of Texas Southern University.