Derrick Darby has posted this draft on SSRN (forthcoming, Kansas Journal of Law and Public Policy). Here is the abstract:

The coverage formula of the Voting Rights Act succumbs in Shelby County v. Holder due to the majority’s narrative of racial progress in America. While they concede that the nation has a tarnished racial history, and is far from perfect, the majority makes a big deal of the fact that “history did not end in 1965.” They rest their novel argument against the coverage formula on the claim that the “entrenched racial discrimination in voting” in covered states in 1965 that justified exceptional legislation back then is no longer prevalent or flagrant. This perspective can be summed up with the motif, “that was then, this is now.” In this Article I reconstruct the majority’s racial progress argument in Shelby County, and raise some concerns about ways of answering it that merely replace a conservative narrative about racial progress with a liberal one. Although I am partial to the latter narrative, and believe that the argument for striking down the coverage formula is deeply flawed, it seems unwise to rest the entire case for saving the Voting Rights Act and defending the right to vote — moving forward — on winning the racial progress argument, especially in a nation so smitten by the view that we have reached the “postracial” promised land. I conclude with speculative remarks about where we might turn to safeguard the right to vote post-Shelby County.