Citation
Nicholas Stephanopoulos, The South After Shelby County, 2013 Sup. Ct. Rev. 55.
Abstract
In Shelby County v. Holder, the Supreme Court dismantled one of the two pillars of the Voting Rights Act — Section 5, which had barred covered southern jurisdictions from changing their election laws without prior federal approval — but left standing Section 2, which prohibits racial discrimination in voting throughout the country. The burning question in the wake of Shelby County is what will happen to minority representation in the South now that Section 5 is no longer operative but Section 2 lives on.
This Article is the first to address that question. It explores the Section 2–Section 5 gap with respect to both the procedure and the substance of voting rights litigation, including differences in burden of proof, default rules before a merits decision, and the costs of proceedings. It argues that the gap is significant — that without Section 5’s prophylactic protection, minority representation in the South is likely to suffer substantially — and proposes both legislative and judicial responses.