Let’s End a Decade-Long Legal Travesty

Let’s End a Decade-Long Legal Travesty

Unitarian Universalists must work to defend voting rights for all.

Jeff Milchen
a crowd in masks stand in a city holding Count Every Vote signs
CC by TheTurducken


Ten years ago this month (June 25), the U.S. Supreme Court issued one of its most anti-democratic rulings in recent history, enabling the launch of new attacks on voting rights in dozens of states.

Shelby County v Holder essentially did to voting rights what last year’s Dobbs v Jackson ruling did to reproductive rights: it eviscerated federal protections and enabled states to deny established rights to millions of Americans, especially Black voters. As with Dobbs, we face a clear choice between defending against an endless wave of attacks across the country, or galvanizing a movement to nullify the court’s regressive activism through federal legislation or constitutional amendment.

The Shelby ruling illustrates why Unitarian Universalists (UUs) have worked for years to strengthen democracy in partnership with Black, Indigenous, and people of color (BIPOC) communities to protect voting rights.

The Shelby v. Holder story began in 2004 when Ernest Montgomery became the second Black person ever elected to the city council of Calera, Alabama, a small city just south of Birmingham. Calera officials reacted by redrawing the election map, transforming Montgomery’s district from 71 percent Black residents to less than 30 percent in 2008. In doing so, the city failed to file for federal review of the new plan, as the Voting Rights Act (VRA) required for areas with histories of racist voter suppression. The scheme worked, and Montgomery was ousted in the next election by a two-vote margin.

Beyond “Winner Takes All” Elections
Rather than restoring previous single-member districts, Calera’s 2009 election used limited voting, a system in which candidates compete for votes citywide. Calera entered into a consent decree with the Department of Justice to adopt a fair voting system in which every voter cast one vote for the city council election and the top six candidates were elected to at-large seats. This structure gives every voter in the city one powerful vote, empowering electoral minorities, instead of a majority voting bloc choosing every candidate.

In between Montgomery’s initial election and Calera’s redistricting, Congress reauthorized the VRA, and the U.S. Department of Justice (DOJ) under President George W. Bush subsequently voided the 2008 election. Calera entered into a consent decree with the DOJ to adopt a fair voting system, resulting in Montgomery’s re-election in 2009.

Among the VRA’s provisions, Sections 4 and 5 identify state and local governments with a history of voting rights abuses and (pre-Shelby) required them to run proposed changes to election laws by the DOJ for permission before enacting them. This “preclearance” provision is vital for stopping disenfranchisement proactively.

Shelby County, where Calera is located, sued the DOJ arguing that those provisions are unconstitutional because they discriminate against communities that no longer deliberately disenfranchise citizens based on race.

Chief Justice John Roberts, who engaged in work to strip racial minorities of voting power long before his nomination to the Supreme Court, cast a decisive vote in the 5-4 Shelby ruling that gutted key VRA protections. The court's opinion claimed the criteria determining which jurisdictions are covered by Section 5 are unconstitutional due to the outdated formula.

The ruling was a stunning power grab by the court’s regressive majority, defying the power of Congress to govern. Notably, the VRA reauthorization in 2006 passed by a 10:1 margin in the House and unanimously in the Senate before President George W. Bush enthusiastically signed it into law.

Racially discriminatory election laws still could be challenged under Section 2 of the VRA, but the burden of proof now falls on voters to challenge already passed laws. So section 5 of the VRA is inoperable until Congress passes new criteria for preclearance that pleases a majority of the Justices.

UUs Take Action
The Unitarian Universalist Association and our UU the Vote campaign will be working alongside our many coalition partners to support crucial protections and defend the UU Fifth Principle, which affirms the use of democratic processes as a human right. The UUA Side With Love team is excited to report that UU the Vote will soon gain a year-round Democracy Strategist, increasing our capacity to go beyond election year mobilizing and ramp up proactive organizing to strengthen democracy.

The majority opinion effectively invited states to resume and expand a huge range of voter suppression tactics; an invitation Texas accepted within hours of the court’s ruling, passing a scheme to obstruct students from voting. And that was just the start. This past April, Texas passed nine anti-voting bills along with a bill giving the state power to simply take over the election process in Harris County, home to Houston and the largest population of non-white voters in the state.

Since Shelby, Republican state legislatures have relentlessly passed laws to make voting more burdensome, including voter intimidation, closing polling locations, cutting early voting opportunities, and dozens more tactics. Whether the lawmakers are driven by racism or merely partisanship, those laws consistently target people of color to make their votes less meaningful and more difficult.

Now, many Republicans seek to move further toward fully legalizing voter suppression, arguing to the Supreme Court in this session (Moore v Harper) that state legislatures largely can do as they wish regarding election law without an obligation to follow even their own states’ constitutions. As we noted in reporting onMoore earlier this year, the Elections Clause of the U.S. Constitution was adopted because the authors distrusted state legislatures and feared exactly the manipulation of elections occurring today.

On June 9, we saw evidence that public outrage against voter suppression and the Supreme Court’s facilitation of it may be influencing the Justices. In Allen v Milligan, the court ruled that Alabama violated Section 2 of the VRA by drawing districts that deliberately minimized the voting power of Black citizens. Chief Justice John Roberts’ majority opinion ran counter to his historic advocacy for voter suppression and directed the state to draw a second majority-Black congressional district. Justices Ketanji Brown Jackson, Elena Kagan, Sonia Sotomayor, and Brett Kavanaugh joined the opinion.

"The only way for UUs and other people of goodwill to ensure that all Americans are enfranchised is to actively push back against efforts to roll back the hard-won gains of previous generations."

The only way for UUs and other people of goodwill to ensure that all Americans are enfranchised is to actively push back against efforts to roll back the hard-won gains of previous generations.

No matter the ruling in Moore, both fighting back voter suppression laws in the states while dedicating energy to support federal protection for voting rights will be up to us. Some combination of bills debated last year—the Freedom to Vote Act, the John Lewis Voting Rights Act, and the Washington, D.C. Admission Act—soon will be reintroduced and deserve vigorous support.

Of course, our ability to vote and have our votes count is fundamental to democracy. And as long as our ability to vote depends on where we reside and the political party controlling our state, voting is merely a vulnerable privilege, not a right. UU the Vote will be providing more resources and action tools upon reintroduction of the federal voting rights bills later this month.

UUA Justice Communications Associate Jeff Milchen welcomes your comments or questions. Tweet @JMilchen