FEDERALISM, SUBSIDIARITY, AND VOTING RIGHTS: CRITIQUING THE SHELBY COUNTY DECISION THROUGH JOHANNES ALTHUSIUS AND CATHOLIC SOCIAL TEACHING

1 The Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendment Act of 2006, Pub. L. No. 109–246, 120 Stat. 577 (2006).

2 E. J. Dionne, “The Fight for Voting Rights,” Philadelphia Inquirer, July 30, 2013.

3 Though I consistently use the term “Catholic social teaching” to convey general sets of principles found primarily in several papal encyclicals, I recognize the rich diversity of the Catholic intellectual tradition that includes a multiplicity of theological (lay, ecclesial, and clerical) perspectives that cannot be reduced into one generic category.

4 Exploring fully the differences between Althusius (and later Calvinist thinkers such as Abraham Kuyper [1837–1920] and ideas about sphere sovereignty) and subsidiarity in Catholic social teaching is beyond the scope of the article. For analysis of their differences, see Ossewaarde, M. R. R., “The Rival Versions of Political Enquiry: Althusius and the Concept of Sphere Sovereignty,” Monist 90, no. 1 (2007): 106–25; Weinberger, Lael Daniel, “The Relationship between Sphere Sovereignty and Subsidiarity,” in Global Perspectives on Subsidiarity, ed. Evans, Michelle and Zimmerman, Augusto (Dordrecht: Springer, 2014), 49–63 ; Golemboski, David, “Federalism and the Catholic Principle of Subsidiarity,” Publius: The Journal of Federalism 45, no. 4 (2015): 526–52; and Van Til, Kent A., “Subsidiarity and Sphere-Sovereignty: A Match Made in … ?” Theological Studies 69, no. 3 (2008): 610–36.

5 For an insightful perspective on the pedagogical function of law and its relation to autonomy and solidarity in the US context, see Kaveny, M. Cathleen, Law's Virtues: Fostering Autonomy and Solidarity in American Society (Washington, DC: Georgetown University Press, 2012).

6 See Gerken, Heather, “Foreword: Federalism All the Way Down,” in “The Supreme Court 2009 Term,” special issue, Harvard Law Review 124, no. 1 (2010): 4–74 .

7 See, for example, Kaveny, M. Cathleen, “Law and Christian Ethics: Signposts for a Fruitful Conversation,” Journal of the Society of Christian Ethics 35, no. 2 (Fall/Winter 2015): 3–32 ; Rothchild, Jonathan, “Law, Religion, and Culture: The Function of System in Niklas Luhmann and Kathryn Tanner,” Journal of Law and Religion 14, no. 2 (2009): 475–506 ; and Kaveny, M. Cathleen, A Culture of Engagement: Law, Religion, and Morality (Washington, DC: Georgetown University Press, 2016).

8 Witte, John Jr., “Rights and Liberties in Early Modern Protestantism: The Example of Calvinism,” in Christianity and Human Rights: An Introduction, ed. Witte, John Jr. and Alexander, Frank S. (Cambridge: Cambridge University Press, 2010), 135–55, at 147.

9 Hueglin, Thomas O., Early Modern Concepts for a Late Modern World: Althusius on Community and Federalism (Waterloo: Wilfrid Laurier University Press, 1999), 5. Hueglin does caution that “Althusius did not develop a theory of the modern federal state, and he did not even use the term ‘federal’ or ‘federation’ exception in a brief section.” Ibid., 2.

10 Althusius, Johannes, The Politics of Johannes Althusius, trans. Carney, Frederick (Boston: Beacon Press, 1964), 12.

11 Ibid.

12 Ibid., 18.

13 See, for example, ibid., 75.

14 Ibid., 74; see chapters 10–17. As Calvin notes, civil government is intended to protect worship of God, piety, and the church, “to form our social behavior to civil righteousness, to reconcile us with another, and to promote general peace and tranquility.” Calvin, John, Calvin: Institutes of the Christian Religion, ed. McNeill, John, 2 vol. Library of Christian Classics 21 (Philadelphia: The Westminster Press, 1960), 2:1487 (book 4, chapter 20, section 2).

15 This appeal to Aristotle resonates with Thomistic thought, which, as I explore below, has significant import for Catholic social teaching.

16 Althusius, The Politics of Johannes Althusius, 19.

17 Aristotle, , The Politics, trans. Lord, Carnes (Chicago: University of Chicago Press, 1984), 21.

18 Althusius, The Politics of Johannes Althusius, 14.

19 For example, Althusius makes such assertions as, “So the male, because the more outstanding, rules the female, who as the weaker obeys.” Ibid., 21; “The wife and family are obedient, and do what is commanded.” Ibid., 24.

20 Ibid., 26.

21 Hueglin, Early Modern Concepts for a Late Modern World, 80. See also Koch, Bettina, “Johannes Althusius: Between Secular Federalism and the Religious State,” in The Ashgate Research Companion to Federalism, ed. Ward, Lee and Ward, Ann (Burlington: Ashgate, 2009), 74–90 , at 72.

22 Althusius, The Politics of Johannes Althusius, 30.

23 Ibid., 31.

24 Ibid., 34.

25 Ibid., 35.

26 Carl Friedrich, preface to The Politics of Johannes Althusius, xi.

27 Althusius, The Politics of Johannes Althusius, 35.

28 Ibid., 40.

29 See Hueglin, Early Modern Concepts for a Late Modern World, 67, 108.

30 Althusius, The Politics of Johannes Althusius, 19.

31 Ibid., 17.

32 Althusius, preface (1st edition, 1603), The Politics of Johannes Althusius, 5.

33 Ibid., preface (3rd edition, 1614), 10. Later he submits that the right of sovereignty “does not belong to individual members, but to all members joined together and to the entire associated body of the realm.” Althusius, The Politics of Johannes Althusius, 65.

34 Ibid., 116.

35 Recent works in Protestant theology that appeal to natural law include VanDrunen, David, Divine Covenants and Moral Order: A Biblical Theology of Natural Law (Grand Rapids: William B. Eerdmans, 2014), arguing for the convergence between the imago Dei, covenant, and natural law; Charles, J. Daryl, Retrieving the Natural Law: A Return to Moral First Things (Grand Rapids: William B. Eerdmans, 2008), arguing that natural law is affirmed in the writings of the Protestant reformers; VanDrunen, David, “The Context of Natural Law: John Calvin's Doctrine of the Two Kingdoms,” Journal of Church and State 46, no. 3 (2004): 503–25, arguing that scholars frequently concentrate on Calvin's notions of sin and grace and neglect the important place of natural law in his notion of the civil kingdom; and Browning, Don S., “A Natural Law Theory of Marriage,” Zygon 46, no. 3 (2011): 733–60, arguing that natural law provides a coherent framework for conceptualizing the premoral goods of marriage.

36 For example, Althusius writes, “Universal symbiotic communion is both ecclesiastical and secular. Corresponding to the former as religion and piety, which pertain to the welfare and eternal life of the soul, the entire first table of the Decalogue. Corresponding to the latter is justice, which concerns the use of the body and of this life, and rendering to each his due, the second table of the Decalogue.” Althusius, The Politics of Johannes Althusius, 70. See also Koch, “Johannes Althusius,” 71.

37 Althusius, The Politics of Johannes Althusius, 142.

38 Calvin writes, “It is a fact that the law of God which we call the moral law is nothing else than a testimony of natural law and of that conscience which God has engraved upon the minds of men.” Calvin, Calvin: Institutes of the Christian Religion, 2:1504 (book 4, chapter 20, section 16).

39 Grabill, Stephen, Rediscovering the Natural Law in Reformed Theological Ethics (Grand Rapids: William B. Eerdmans, 2006), 131; see also Witte, John Jr. “A Demonstrative Theory of Natural Law: The Original Contribution of Johannes Althusius,” in Public Theology for a Global Society: Essays in Honor of Max L. Stackhouse, ed. Hainsworth, Deirdre King and Paeth, Scott R. (Grand Rapids: William. B. Eerdmans, 2009), 21–36 , at 28.

40 John Witte observes that Althusius's appeal to natural law had practical import within his politically fragmented context: “[Althusius's] natural law theory was designed to produce a new concordance of discordant canons that transcended differences of creed, country, and custom.” Witte, John Jr., “A Demonstrative Theory of Natural Law: Johannes Althusius and the Rise of Calvinist Jurisprudence,” Ecclesiastical Law Journal 11, no. 3 (2009): 248–65, at 264.

41 Althusius, The Politics of Johannes Althusius, 91.

42 Grabill, Rediscovering the Natural Law, 149.

43 Althusius, The Politics of Johannes Althusius, 67.

44 Ibid., 79, 139. Althusius later notes that “proper law (jus proprium) is nothing other than the practice of this common natural law (jus naturale) as adapted to a particular polity.” Ibid., 139.

45 Ibid., 79.

46 Koch, “Johannes Althusius,” 73.

47 Althusius, The Politics of Johannes Althusius, 57–58.

48 Føllesdal, Andreas, “Competing Conceptions of Subsidiarity,” in Federalism and Subsidiarity, ed. Fleming, James E. and Levy, Jacob T. (New York: New York University Press, 2014), 214–30, at 223.

49 See, for example, passages from Althusius's Politics such as the following: “An administration is said to be just, legitimate, and salutary that seeks and obtains the prosperity and advantages of the members of the realm, both individually and collectively.” Althusius, The Politics of Johannes Althusius, 92.

50 Ibid., 43.

51 Ibid., 44.

52 Ibid.

53 Steven G. Calabresi and Lucy D. Bickford, “Federalism and Subsidiarity: Perspectives from U.S. Constitutional Law,” in Fleming and Levy, Federalism and Subsidiarity, 123–89, at 162.

54 See, for example, Althusius, The Politics of Johannes Althusius, 66–68.

55 Hueglin, Early Modern Concepts for a Late Modern World, 51.

56 Ibid., 53.

57 Ibid., 95.

58 Althusius, The Politics of Johannes Althusius, 49 (emphasis added).

59 Gerken, “Foreword: Federalism All the Way Down,” 14.

60 Althusius, The Politics of Johannes Althusius, 27.

61 Judith Resnik, “Federalism(s)’ Forms and Norms: Contesting Rights, De-essentializing Jurisdictional Divides, and Temporizing Accommodations” in Fleming and Levy, Federalism and Subsidiarity, 363–435, at 369.

62 Ibid., 370.

63 The most prominent is Leo XIII's Rerum Novarum in 1891. Joseph Komonchak recognizes various perspectives on the emergence of subsidiarity. He favors views on subsidiarity as a modern development (such as Arthur-Fridolin Utz's in Das Subsidiaritätsprinzip). Komonchak, Joseph, “Subsidiarity in the Church: The State of the Question,” Jurist 48, no. 1 (1988): 298–349 , at 298.

64 Van Til, “Subsidiarity and Sphere-Sovereignty,” 614.

65 Aroney, Nicholas, “Subsidiarity, Federalism and the Best Constitution: Thomas Aquinas on City, Province and Empire,” Law and Philosophy 26, no. 2 (2007): 161–228 , at 166.

66 Pontifical Council for Justice and Peace, Compendium on the Social Doctrine of the Church (Washington, DC: United States Conference of Catholic Bishops, 2004), 82.

67 Pius XI, Quadragesimo Anno, in Catholic Social Thought: The Documentary Heritage, eds. O'Brien, David J. and Shannon, Thomas A. (Maryknoll: Orbis Books, 1992), 60.

68 See, for example, Endo, Ken, “The Principle of Subsidiarity: From Johannes Althusius to Jacques Delors,” Hokkaido Law Review 44, no. 6 (1994): 652–553.

69 Hueglin, Early Modern Concepts for a Late Modern World, 159.

70 Himes, Kenneth R., Christianity and the Political Order: Conflict, Cooptation, and Cooperation, Theology in Global Perspectives Series (Maryknoll: Orbis Books, 2013), 213.

71 Pius XI, Quadragesimo Anno, 47.

72 Ibid., 49, 61.

73 Ibid., 52.

74 Ibid., 60.

75 Van Til, “Subsidiarity and Sphere-Sovereignty,” 615.

76 Examples of the goods described in Catholic social teaching include “teloi” (Van Til, “Subsidiarity and Sphere-Sovereignty,” 619) and “munera” ( Hittinger, Russell, “Social Pluralism and Subsidiarity in Catholic Social Doctrine,” Annales Theologici 16 (2002): 385–408 ; Patrick McKinley Brennan, “Subsidiarity in the Tradition of Catholic Doctrine,” in Evans and Zimmerman, 29–47, at 37–40.

77 Pope John XXIII, Mater et Magistra, Catholic Social Thought, 92.

78 Ibid., 93.

79 Ibid.

80 Golemboski, “Federalism and the Catholic Principle of Subsidiarity,” 541.

81 For a broader critique of dual federalism, see Sotirios A. Barber, “Defending Dual Federalism: A Self-Defeating Act,” in Fleming and Levy, Federalism and Subsidiarity, 3–21.

82 Pontifical Council for Justice and Peace, Compendium on the Social Doctrine of the Church, 82.

83 For further discussion, see Vischer, Robert K., “Subsidiarity as Subversion,” Journal of Catholic Social Thought 2, no. 2 (2005): 277–311.

84 Pope John Paul II, “Centesimus Annus: On the Hundredth Anniversary of Rerum Novarum,” in Catholic Social Thought, 440.

85 Ibid., 449.

86 Althusius does not share a commitment to strict equality, which he believes is a source of social conflict: “Contrary to this fairness is equality (aequalitas), by which individual citizens are levelled among themselves in all those things I have discussed. From this arises the most certain disorder and disturbance of matters.” Althusius, The Politics of Johannes Althusius, 44. Strict equality would interfere with his model of divine sovereignty and God's providential dispersal of gifts.

87 Pope John Paul II, “Centesimus Annus,” 448.

88 Ibid., 469; Pope Francis, Laudato Si’ [Encyclical on care of our common home] (May 14, 2015), http://w2.vatican.va/content/francesco/en/encyclicals/documents/papa-francesco_20150524_enciclica-laudato-si.html.

89 Komonchak, “Subsidiarity in the Church,” 301–2.

90 I disagree with those, such as Ken Endo, who assert that the church's hierarchical and corporative perspective restricts solidarity to only vertical interactions. See Endo, “The Principle of Subsidiarity,” 638.

91 Farley, Margaret A., Just Love: A Framework for Christian Sexual Ethics (New York: Continuum, 2006), 212. David Hollenbach prefers “freedom” rather than “autonomy” and adds “basic needs” as a third obligating feature of personhood. See Hollenbach, David, “Human Dignity: Experience and History, Practical Reason and Faith,” in Understanding Human Dignity, ed. McCrudden, Christopher (Oxford: Oxford University Press, 2013), chapter 6, at 129–30.

92 Vischer, Robert K., “Solidarity, Subsidiarity, and the Consumerist Impetus of American Law,” in Catholic Perspectives on American Law, ed. Scaperlanda, Michael and Collett, Teresa Stanton (Washington, DC: The Catholic University of America Press, 2007), 85–103 , at 97–98.

93 Ibid., 99.

94 Pope John Paul II, “Centesimus Annus,” 477.

95 557 U.S. 193 (2009).

96 Based on this emphasis on the statute, some predicted that the Roberts court would continue to privilege statutory instead of constitutional claims; see Banks, Christopher P. and Blakeman, John C., The U.S. Supreme Court and New Federalism: From the Rehnquist to the Roberts Court (Lanham: Rowman and Littlefield Publishers, 2012), 136, 275. Others observe tensions in the emphasis on the statutory point. As Luis Fuentes-Rohwer wonders in light of the Northwest Austin decision, “why is the Court uncharacteristically deferential to Congress on the question of congressional powers, yet unduly aggressive when interpreting the language of the statute?” Fuentes-Rohwer, Luis, “Understanding the Paradoxical Case of the Voting Rights Act,” Florida State University Law Review 36, no. 4 (2009): 697–763 , at 702.

97 Northwest Austin, 557 U.S. at 202.

98 Ibid.

99 Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013), 2631.

100 Ibid.

101 Ibid., quoting South Carolina v. Katzenbach, 383 U.S. 301 (1966).

102 See Redding, Kent, Making Race, Making Power: North Carolina's Road to Disenfranchisement (Urbana: University of Illinois Press, 2003).

103 Walters, Ronald W., Freedom Is Not Enough: Black Voters, Black Candidates, and American Presidential Politics (Lanham: Rowman & Littlefield, 2005), 18.

104 The expanded coverage in 1970 included boroughs in New York, one county in Wyoming, two in California, and five in Arizona. In its 1975 reauthorization, Congress extended voting rights protections to “language minorities” and applied the new formula to include, additionally, Alaska, Arizona, and Texas and parts of California, Colorado, Florida, Michigan, New Mexico, New York, North Carolina, Oklahoma, and South Dakota. In 2013, nine states and parts of seven others were subject to Section 5 preclearance, and twenty-eight states were subject to the “language minority” provisions.

105 Shelby County, 133 S. Ct. at 2631.

106 Others point to the success of the Voting Rights Act as a contributing factor to the collapse of the New Deal coalition that underpinned congressional Democratic power. See Karlan, Pamela, “Loss and Redemption: Voting Rights at the Turn of the Century,” Vanderbilt Law Review 50, no. 2 (1997): 291–326, at 314.

107 May, Gary, Bending toward Justice: The Voting Rights and the Transformation of American Democracy (New York: Basic Books, 2013), 238.

108 Ibid., 239.

109 Ibid., xi.

110 Shelby County, 133 S. Ct. at 2619, 2626.

111 Ibid., 2628.

112 Ibid.

113 Though writing before he participated in the Shelby County dissent, Justice Breyer's conception of federalism (“Legislators are better able than courts to gather empirical information, to make fact-based predictions, and to exercise informed policy judgment. Hence the Court should often hesitate before substituting its own judgment for that of Congress”) likely influenced his dissent. See Breyer, Stephen, Making Our Democracy Work: A Judge's View (New York: Alfred A. Knopf, 2010), 126.

114 Light, Steven Andrew, “The Law Is Good:” The Voting Rights Act, Redistricting, and Black Regime Politics (Durham: Carolina Academic Press, 2010), 8.

115 See Katz, Ellen et al. , “Documenting Discrimination in Voting: Judicial Findings under Section 2 of the Voting Rights Act Since 1982: Final Report of the Voting Rights Initiative, University of Michigan Law School,” University of Michigan Journal of Law Reform 39, no. 4 (2006): 643–772 . In a focused study of Department of Justice objections in South Carolina between 1970 and 2005, Guy-Uriel E. Charles and Luis Fuentes-Rohwer affirm that the preclearance process continues to have validity. Charles, Guy-Uriel E. and Fuentes-Rohwer, Luis, “Rethinking Section 5,” in The Future of the Voting Rights Act, ed. Epstein, David L. et al. (New York: The Russell Sage Foundation, 2006), 38–60 , at 48.

116 Bullock, Charles S. III and Gaddie, Ronald Keith, The Triumph of Voting Rights in the South (Norman: University of Oklahoma Press, 2009).

117 See McDonald, Laughlin, “The Bull Connor Is Dead Myth: Or Why We Need Strong, Effectively Enforced Voting Rights Laws,” in Most Fundamental Right: Contrasting Perspectives on the Voting Rights Act, ed. McCool, Daniel (Bloomington: Indiana University Press, 2012), 123–56.

118 Shelby County, 133 S. Ct. at 2635 (Ginsburg, J., dissenting).

119 Ibid., 2642.

120 Ibid.

121 As Richard L. Hasen notes, “[c]olorblindness is fast becoming his signature issue.” Richard Hasen, “The Chief Justice's Long Game.” New York Times, June 26, 2013, http://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html.

122 Bernard Grofman and Thomas Brunell, “Extending Section 5 of the Voting Rights Act: The Complex Interaction between Law and Politics,” in Epstein et al., The Future of the Voting Rights Act, 311–39, at 317.

123 Peacock, Anthony A., Deconstructing the Republic: Voting Rights, the Supreme Court, and the Founders’ Republicanism Reconsidered (Washington, DC: American Enterprise Press, 2008), 21.

124 Alexander, Michelle, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2012), 219.

125 Ibid., 115.

126 Ibid., 12–13.

127 Ibid., 13.

128 To be sure, Chief Justice Roberts is not the only justice to defend federalism with respect to voting rights. The dissenting opinions of Justice Powell and Justice Rehnquist in City of Rome v. United States, 446 U.S. 156 (1980), offer another example. I am mindful that there are differing interpretations of the meaning of federalism, including the idea that “it is an oversimplification to view the Court's work as simply favoring centralization or states’ rights in one period or another.” Banks, Christopher P. and Blakeman, John C., The U.S. Supreme Court and the New Federalism: From the Rehnquist to the Roberts Court (Lanham: Rowman & Littlefield, 2012), 50.

129 Hasen, Richard, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (New York: New York University Press, 2003), 125.

130 The origin of the term “federalism five” is likely found in James L. Kilpatrick, “The Court's Three Cheers for States’ Rights,” News and Observer, July 1, 1999, A19. See Barrett, John Q., “The ‘Federalism Five’ as Supreme Court Nominees, 1971–1991,” St. John's Journal of Legal Commentary 21, no. 2 (2007): 485–96.

131 529 U.S. 598 (2000).

132 See, for example, Calabresi and Bickford, “Federalism and Subsidiarity,” 149.

133 Chemerinsky, Erwin, Enhancing Government: Federalism for the 21st Century (Stanford: Stanford University Press, 2008), 112.

134 Judith Resnik, “Federalism(s)’ Forms and Norms,” 380–81.

135 For a trenchant critique of Chief Justice Roberts's legal reasoning here, see Eric Posner, “John Roberts’ Opinion on the Voting Rights Act is Really Lame,” Slate, June 25, 2013, http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_on_the_voting_rights_act_chief_justice_john_roberts_struck.html.

136 Chief Justice Roberts discounts the fact that many individuals themselves felt like an “unequal neighbor” when confronted with disenfranchisement. Gary May discusses the example of Annie Lee Cooper who had no trouble voting as a resident of Kentucky, Pennsylvania, and Ohio but who “became a second class citizen” when she returned to Alabama in 1962. May, Bending toward Justice, 64.

137 321 U.S. 649 (1944).

138 Banks and Blakeman, The U.S. Supreme Court and the New Federalism, 50.

139 See Olson, Franita T., “Reinventing Sovereignty? Federalism as a Constraint on the Voting Rights Act,” Vanderbilt Law Review 65, no. 4 (2012): 1195–259.

140 May, Bending toward Justice, 244.

141 See Douglas, Joshua, “The Right to Vote under State Constitutions,” Vanderbilt Law Review 67, no. 1 (2014): 89–149 , at 142–43.

142 See, Crawford v. Marion County Election Board, 553 U.S. 181 (2008).

143 See, for example, Randy Ludlow and Jack Torry, “U.S. Supreme Court Delays Start of Ohio Early Voting,” Columbus Dispatch, September 30, 2014, http://www.dispatch.com/content/stories/local/2014/09/29/early-voting-in-ohio.

144 Althusius, The Politics of Johannes Althusius, 92.

145 May, Bending toward Justice, 242–44; Michael Muskal, “U.S. Sues North Carolina over Voting Law; The Attorney General Says New Restrictions to Prevent Fraud Will Disproportionately Affect Minority Voters,” Los Angeles Times, October 1, 2013.

146 Piven, Frances Fox, Minnite, Lorraine C., and Groarke, Margaret, Keeping Down the Black Vote: Race and the Demobilization of American Voters (New York: The New Press, 2009), 42, 164.

147 Heller, Joel A., “Fearing Fear Itself: Photo Identification Laws, Fear of Fraud, and the Fundamental Right to Vote,” Vanderbilt Law Review 62, no. 6 (2009): 1871–911, at 1887. See also Ewald, Alec C., The Way We Vote: The Local Dimension of American Suffrage (Nashville: Vanderbilt University Press, 2009), 136.

148 Karlan, Pamela, “Lessons Learned: Voting Rights and the Bush Administration,” Duke Journal of Constitutional Law and Public Policy 4, no. 1 (2009): 17–29, at 23.

149 Kaveny, Law's Virtues, 200, 198.

150 Vischer, Robert K., Conscience and the Common Good: Reclaiming the Space between Person and State (Cambridge: Cambridge University Press, 2010), 104.

151 424 U.S. 1 (1976).

152 134 S. Ct. 1434 (2014).

153 Kings-Meadows, Tyson D., When the Letter Betrays the Spirit: Voting Rights Enforcement and African American Participation from Lyndon Johnson to Barack Obama (Lanham: Lexington Books, 2011), 289–97.

154 See Toledano, Enbar, “Section 5 of the Voting Rights Act and Its Place in ‘Post-Racial’ America,” Emory Law Journal 61, no. 2 (2011): 391–434.

155 See May, Bending toward Justice, 251.

156 Swain, Carol M., “Reauthorization of the Voting Rights Act: How Politics and Symbolism Failed America,” Georgetown Journal of Law and Public Policy 5, no. 1 (2007): 29–39 , at 31.

157 Karlan, “Loss and Redemption,” 316.

158 Hollenbach, David, The Common Good and Christian Ethics (Cambridge: Cambridge University Press, 2002), 189.

159 Althusius, The Politics of Johannes Althusius, 75.

160 Stephan Dinan, “Holder Sues Texas over State's Own Voter Laws; Arizona, Kansas also Fighting Federal Rules,” Washington Times, August 23, 2013; Richard Wolf, “On March's 50 Anniversary, Voting Rights Still an Issue; High Court Decision Gives Imprimatur to Tough New Laws,” USA Today, August 26, 2013.

161 See, for example, Crum, Travis, “The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance,” Yale Law Journal 119, no. 8 (2010): 1992–2038 .

162 Shelby County, 133 S. Ct. at 2644 (Ginsburg, J., dissenting).

163 393 U.S. 544 (1969).

164 Ibid., 565.

165 Shelby County, 133 S. Ct. at 2640 (Ginsburg, J., dissenting).

166 Hasen, Richard, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (New York: New York University Press, 2003), 7.

167 539 U.S. 461 (2003).

168 Swain, “Focus on the Voting Rights Act,” 35.

169 Charles, Guy-Uriel E. and Fuentes-Rohwer, Luis, “Mapping a Post-Shelby County Contingency Strategy,” Yale Law Journal Online 123 (2013): 131–50, June 7, 2013, http://www.yalelawjournal.org/forum/mapping-a-post-shelby-county-contingency-strategy.

170 Pontifical Council for Justice and Peace, Compendium on the Social Doctrine of the Church, 153.

171 Charles and Fuentes-Rohwer, “Mapping a Post-Shelby County Contingency Strategy,” 135.

172 Ibid., 144. See also May, Bending toward Justice, 247.