In Shelby County v. Holder, the Supreme Court eviscerated section 5 of the Voting Rights Act, a powerful remedy that applied to certain states and localities, which were identified by Section 4(b) of the Act. The Court held that section 4(b) violated “the principle that all States enjoy equal sovereignty.” I submit that Shelby County conflates sameness with equality, and that it constitutes a radical departure from precedent in three areas: (a) separation of powers; (b) federalism; and (c) the rules of adjudication for facial challenges. The decision is a major setback to civil rights. Ironically, it also provides an incentive for Congress to impose greater intrusions on state sovereignty in future legislation.
Northern Illinois University Law Review
"A Doctrine of Sameness, not Federalism: How the Supreme Court's Application of the "Equal Sovereignty" Principle in Shelby County v. Holder Undermines Core Constitutional Values,"
Northern Illinois University Law Review: Vol. 34:
3, Article 4.
Samuel Spital, A Doctrine of Sameness, not Federalism: How the Supreme Court’s Application of the “Equal Sovereignty” Principle in Shelby County v. Holder Undermines Core Constitutional Values, 34 N. Ill. U. L. Rev. 561 (2014).