Access to Justice

With Voting Rights Under Assault Across America, Shelby County Lawsuit Could Allow Vote-Stripping Without Preclearance

CAC Explains That Assault on Voting Rights Cannot Be Squared With Text And History Of 15th Amendment

CAC Civil Rights Director David Gans: “With voting rights under assault in states across America, the importance of preclearance is ever more apparent.”

Washington, DC – Since the Voting Rights Act of 1965 was reauthorized nearly unanimously by both houses of Congress in 2006, the Act has been under sustained attack. In 2009, in NAMUDNO v. Holder, the Supreme Court came dangerously close to striking down the Act’s preclearance requirement that requires certain states and local governments that have a history of racial discrimination in voting to preclear voting changes with the Justice Department or a three-judge court in Washington, D.C., but ultimately avoided deciding the question. Since then, state and local governments have lined up to challenge the constitutionality of this section, one of the most important and successful parts of the Voting Rights Act.

Now, with a slew of state and local laws seeking to limit ballot access coming mostly out of southern states subject to the preclearance requirement, the U.S. Court of Appeals for the D.C. Circuit is poised to hear the preclearance issue in Shelby County v. Holder (following Shelby County’s recent defeat in U.S. District Court) that the Supreme Court avoided in NAMUDNO.

Today, Constitutional Accountability Center filed a “friend of the court” brief in that case defending the Voting Rights Act with the original meaning of the 15th Amendment, showing how Shelby County’s argument crashes against the text and history of the Constitution, which gives Congress sweeping power to eradicate racial discrimination in voting.

Read CAC’s brief in Shelby County v. Holder here.

David Gans, Director of CAC’s Civil Rights Program and author of the recent study Perfecting the Declaration, said, “With voting rights under assault in states across America, the importance of preclearance is ever more apparent. Those who seek to undo the rights of African Americans and other racial and ethnic minorities to free access to the ballot first have to do battle with the text and history of the 15th Amendment. That is a battle these challengers cannot win. As we make clear in the brief we filed with the Court of Appeals today, the evidence is overwhelming and definitive that the framers of the 15th Amendment provided Congress with broad authority to enact appropriate legislation to prevent and deter racial discrimination in voting. Shelby County’s argument is totally at odds with the 15th Amendment.”

Elizabeth Wydra, CAC’s Chief Counsel, continued, “In resisting the force of the 15th Amendment’s clear language, Shelby County echoes the same rejected arguments that opponents of the Amendment made in challenging its adoption in 1870. Shelby County ignores the historical reality that shows the 15th Amendment gives Congress broad power to regulate the states to ensure that the right to vote is fully enjoyed by all Americans, regardless of race. Such misguided ‘states’ rights’ arguments lost out in the wake of the Civil War, and we are confident they will lose in the Court of Appeals.”

The Court is scheduled to hear oral argument on January 19, 2012.



Brief amicus curiae by CAC in Shelby County v. Holder

CAC testimony before Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Human Rights, hearing on “New State Voting Laws: Barriers to the Ballot,” September 7, 2011

“Senate Judiciary Subcommittee Examines the War on Voting,” David Gans, September 9, 2011

“Victory in Shelby County v. Holder: U.S. District Judge Issues Sweeping Ruling Upholding the Voting Rights Act,” David Gans, September 21, 2011

“Perfecting the Declaration: The Text and History of the Equal Protection Clause of the Fourteenth Amendment,” David Gans, November 16, 2011


Constitutional Accountability Center ( is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.