"Throwing Away the Umbrella"

Shelby County v. Holder, And a Rainstorm of Suppression

In 2004, in the small city of Calera, Alabama, a lifelong Black resident named Ernest Montgomery ran and won a seat (District 2) on the Calera City Council. This made him Calera’s only Black Councilmember, even though close to 30% of the city’s residents were Black.

Calera, AL

Two years after his win, Calera’s Mayor informed the first-term Councilmember that rapid population growth required that the districts of the city be redrawn. And wouldn’t you know it—the Black proportion of his district was reduced from around 70% to 29%. In the next election, the new district voted Montgomery out.

But Calera had a problem. It had not submitted the district plan that eliminated its only Black councilmember to the pre-clearance process required by Section 5 of the Voting Rights Act. The DOJ stepped in and a new, non-discriminatory district map was ordered.

Montgomery won his seat back in 2009, and never looked back.

In fact, Ernest Montgomery still serves on the City Council to this day. Here’s his official website. Over his tenure, he has served on the Planning & Zoning Board, the Calera Water Board, on the Revitalization Board, and on the Farmers Committee. A lifetime of public service to the community where he grew up, met his wife and raised his family.

Ernest Montgomery’s story is a case study of the Voting Rights Act correcting a wrong, and protecting a democracy that allows all to serve, and all to vote for candidates of their choice.

There are thousands of stories like Ernest Montgomery’s. So why am I telling you his?

Because his story turned out to be one of the last positive case studies of the Voting Rights Act (Section 5, at least) in action. Why?

Here’s a hint: Calera is located within a county you may have heard of—Shelby County.

And in resisting the DOJ’s effort to right the wrong delivered upon Calera’s only Black councilmember, Shelby County managed to topple the entire apparatus that kept Montgomery in office.

But Shelby County didn’t do this on its own—it was invited to do so by the highest court in the land.

CLASS 18 of my Voting Rights Academy takes a close look at the Shelby County v. Holder case, one of the most pivotal decisions in the history of American voting rights, and its consequences.

Sadly, those entirely predictable consequences stand in stark contrast to the auspicious lifetime of service of Ernest Montgomery.

The Invitation

The Voting Rights Act sailed smoothly into the early 2000s. Using Section 5, the DOJ had blocked thousands of discriminatory changes just like that in Calera, protecting millions of voters while opening doors of opportunity for thousands of Black elected officials across the South—and standing in the way of efforts to close those doors.

Politically, the VRA stood on firmer ground than ever. In 2006, for the first time, the Senate vote to extend the VRA was not just bipartisan, but unanimous (98-0). It passed 390-33 in the House and was signed by President George W. Bush.

And the extension was for twenty-five years!

Stronger than ever, right?

So it might seem. But only three years later, an ominous shot was fired across its bow.

A Texas municipal district, Northwest Austin, found itself trying to avoid amending its voting rules. And at the Supreme Court, one of its arguments was that Section 5 of the Voting Rights Act violated the Constitution. In an 8-1 decision, the Court resolved the case on other grounds, ducking the Constitutionality issue.

But along the way, Chief Justice Roberts warned: “Some of the conditions that we relied upon in upholding [Section 5] have unquestionably improved. Things have changed in the South. Voter turnout and registration rates now approach parity…And minority candidates hold office at unprecedented levels.”

“These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements….[T]he Act imposes current burdens and must be justified by current needs.”

Then came this not-so-subtle observation: “The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”

It didn’t take a Supreme Court guru to pick up on where Roberts—who’d spent decades assailing the Voting Rights Act— was going here. Indeed, these words amounted to an invitation for another lawsuit—one that could not be resolved on alternative grounds as Northwest Austin was.

But to seize that invitation, you needed two things:

First, you needed a jurisdiction that was still “covered” under the Voting Rights Act—meaning it had not proven itself so free of discriminatory practices to be “bailed out” of being subject to VRA (as Northwest Austin had).

Second, you needed a fresh violation of the Voting Rights Act pre-clearance process—recent enough to challenge the government’s action to stop that violation and set up an active appeal.

Yes, ironically, the perfect plaintiff was one that had engaged in both past and recent discrimination.

Fitting that bill to a tee, apparently unhappy that Ernest Montgomery was back on Calera’s City Council, Shelby County gladly accepted Roberts’s invitation.

And in November 2012, the Court agreed to hear its case.

Guns Blazing: The Oral Arguments

It’s usually hazardous to guess how the Supreme Court will rule on a particular case based on that case’s oral argument. It’s often an exercise in devil’s advocacy.

But when you listen to the questioning in the Shelby County v. Holder (which you can listen to HERE), it’s pretty clear where things are headed…