To Make Freedom Happen: Shelby County v. Holder, The Supreme Court, and the Creation Myth of American Voting Rights

Abstract

There has never been a moment in American history when federal intervention, supervision, or enforcement was not necessary to guarantee full and meaningful voting rights for African Americans. Yet, since ratification of the Fifteenth Amendment, providing that states shall not deny the right to vote on the basis of race, the United States Supreme Court, when deciding questions of the legitimacy of federal enforcement of voting rights, has always reached for a narrative of federalism that cast federal intervention as a historical aberration at best and a constitutional perversion at worst. Since passage of the Voting Rights Act of 1965 and its pre-clearance provisions, requiring covered states to submit for federal approval any changes to their election laws, the Court’s federalist narrative of federal supervision as a constitutional trespass upon state sovereignty has become even more entrenched. Shelby County v. Holder may be the final coda in the story of federal power as interloper upon state sovereign control of voting rights, but in truth the Supreme Court began to tell the tale almost as soon as the Fifteenth Amendment was ratified. This Article offers an alternative narrative —a narrative that focuses on the fact that the entire purpose of the American federalist project was not to protect the dignity of more or less random geographical demarcations on a map but rather to safeguard individual liberty, human freedom, and personal dignity; a narrative that gives life to the human characters who were instrumental in the passage of the Voting Rights Act, including those individuals from the Student Nonviolent Coordinating Committee (SNCC), the Congress for Racial Equality (CORE), the National Organization for the Advancement of Colored People (NAACP), the Council of Federated Organizations (COFO), the Mississippi Freedom Democratic Party (MFDP), and Freedom Schools throughout the Deep South. The Article concludes with a few of their personal stories in order to show that without these anonymous young people the Voting Rights Act would not have existed, and that now that the Shelby decision has caused the preclearance provisions of the Act to pass into legend, their work remains the one true narrative of American voting rights.