10 Years After Shelby: Why Funders Must Continue to Support Voting Rights Litigation

The State Infrastructure Fund’s Director, Erica Teasley Linnick, sits down with Raymond Partolan, the new Program Officer for Voting Rights at SIF, to discuss how the Supreme Court’s June 2013 decision in Shelby County v. Holder resonates today, how SIF and the organizations it supports have made an impact in the field, and the critical importance of funding voting rights efforts moving forward.  

In the Shelby case, Shelby County, Alabama sued the U.S. Attorney General seeking a declaratory judgment, or a legal determination by a court, that sections 4(b) and 5 of the federal Voting Rights Act (VRA) of 1965 were unconstitutional. The landmark legislation that, to its very core, prohibits racial discrimination in voting, required certain jurisdictions, like cities, counties, and states, to seek “preclearance” from the U.S. Department of Justice or federal court before enacting any election changes. These “covered jurisdictions,” were determined to have had pervasive histories of discrimination in voting. Prior to Shelby, “covered jurisdictions” intending to make election changes carried the burden of proving that the change did not have the purpose or effect of discriminating on the basis of race or language minority status. Shelby County was such a covered jurisdiction. 

On June 25, 2013, the Supreme Court ruled that Section 4(b) was unconstitutional because the coverage formula was based on data over 40 years old, making it no longer responsive to current needs and therefore an unconstitutional burden on the states.  Congress was going to have to pass legislation to restore teeth to the Voting Rights Act. 

Raymond: Erica – thank you so much for sitting down with me today to recognize the 10-year anniversary of the Supreme Court’s decision in Shelby County v. Holder, which changed the conditions under which voters across the country, but particularly in the South, are able to cast their ballots and have a say in American Democracy. Can you start by talking briefly about what exactly Shelby did to change the voting rights landscape and how voting rights activists and funders reacted to the news? 

Erica: As you know, the Shelby decision by the Supreme Court ushered in a new voting rights era during which it became much easier for legislators, governors, and local election officials to erect barriers to the vote and discriminate against Black, indigenous, Asian, Latinx and other historically disenfranchised groups. Before the ink was dry, states began to implement voting changes that previously would have not passed the scrutiny of the federal court or the Department of Justice as was previously the law under the Voting Rights Act of 1965 (VRA). 

The Texas voter photo ID law is the perfect example of such a discriminatory law– the year before Shelby, a federal court ruled that the ID law would adversely impact voters of color so it could not be implemented. Texas passed a similar bill again the next year post-Shelby which meant it could become law in the absence of federal oversight for voting changes.

The decision was utterly devastating for both the Voting Rights Act and the voting rights community.  Advocates had to advance new ways to protect voters in the wake of Shelby and funders needed to quickly develop grantmaking strategies to assist those organizations as both groups entered new territory together.  This led to the creation of the Shelby Response Fund which became SIF’s voting rights portfolio.  The Shelby Response Fund created a litigation collaborative comprised of 10 legal organizations committed to the advancement of voting rights and the protection of BIPOC voters. In addition, the Fund resourced organizers, policy advocates, and communications strategists to strengthen the coalition working under the new dynamic that resulted from the gutting of the VRA. Today, the litigation collaborative continues to meet monthly to coordinate and discuss how to best utilize their available resources. 

Raymond: It’s really incredible to see the enormous impact of Shelby on the voting rights field. We now know how this decision paved the way for state legislatures to make voting harder for people, especially the communities that we primarily serve, but we also see the strength and fortitude as funders coalesced around the idea that supporting the  voting rights field, and especially voting rights litigation, can yield long-lasting protections for our right to have a proper say in who gets to represent us at every level of government. 

Erica: Yes. In fact, this month, ten years after Shelby, the voting rights field is celebrating the recent Supreme Court win in Allen v Milligan where the court reviewed Alabama’s Congressional maps and agreed with our grantees (as well as the lower District Court in Alabama) that the maps discriminated against Black voters in the state.  While we celebrate these major wins in the courts, we know that we still need Congress to act to strengthen the VRA and correct the damage that Shelby did by passing the John Lewis Voting Rights Advancement Act, which would modernize the almost-60 year old Voting Rights Act, restore the “preclearance” requirement deemed unconstitutional in Shelby, and strengthen protections against racial discrimination in voting.  Litigation continues to be one of the strongest methods to combat voter suppression and to give folks a voice in our political process. I am glad you’ve joined the SIF team and will be able to continue to support the voting rights field as we approach another important election year and must remain vigilant as state legislatures continue to pass laws that restrict the freedom to vote.  I’m curious about your thoughts about the Milligan decision and what it means for our work. 

Raymond: Thanks, Erica. I’m really happy to be here! Getting to work with you and the rest of the folks on our team is a true honor. Milligan was a tremendous win for us in the voting rights space. Essentially, it preserves a voter’s ability to bring claims under Section 2 of the Voting Rights Act. For folks that don’t know, Section 2 prohibits voting practices or procedures on the basis of race, color, or membership in a language minority group. Under Milligan, we still have the ability to challenge discriminatory voting practices that diminish our rights to elect candidates of choice.  

While this decision, in and of itself, does not offer any new rights, nor does it expand the Voting Rights Act itself, it does preserve the status quo in the sense that it preserves one of the last-remaining protections in force under the Act. 

What this means for us in our work is that there will be new opportunities to challenge unfair maps that dilute the power of voters of color. In fact, some of these challenges are already happening in states like Arkansas, Georgia, Louisiana, and Texas. Organizers and litigators are gearing up for long, protracted fights in the courts and it is absolutely critical that we continue to resource these efforts and even expand our investments in this area of work. Milligan was brought by SIF’s grantees – both the litigators in the case, all of whom are members of SIF’s litigation collaborative, and the organizational plaintiffs they represented. With SIF’s continued support for resourcing voting rights litigation, and with additional investments from other funders, more of these types of wins are possible. 

For us to ensure that all voters, regardless of their race, have an equal opportunity to participate in the political process, and to bring about the societal changes that we want to see around the myriad issues important to us, we must continue to protect and expand democracy by giving the advocates the resources they need to succeed. 

Erica: Thank you, Raymond. It was great talking about the continued importance of voting rights and SIF’s commitment to help sustain the movement for many years to come. We’ve been here since before the Shelby decision, in the ten years since, and we’ll continue to be here for the next ten years and beyond. 

About SIF 

The State Infrastructure Fund (SIF), housed at NEO Philanthropy, is a nonpartisan, 501(c)(3) donor collaborative fund that works to increase civic participation and advance voting rights among Black, Indigenous, and People of Color (BIPOC) and other historically underrepresented communities. SIF advances this mission by providing consistent, long-term funding to networks of state-based and state-focused nonpartisan organizations that engage their communities through civic engagement, education and advocacy, organizing, voter mobilization, reducing voter suppression, and protecting the right to vote through the Election Protection hotline and voting rights litigation. 

Since its inception in 2010, SIF has raised more than $170M to support 140+ state-based and national nonpartisan groups, with a specific focus on organizations serving voters in three priority regions: the South; the Southwest; and the Great Lakes region. 


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