Voting Under Siege: Eight Years of Shelby County v. Holder
By Joel Park
The right to vote is foundational to our democracy and fundamental to our identity as Americans. As the U.S. Supreme Court noted more than a century ago, the right to vote is “preservative of all rights.” As voters, we choose our elected officials whose decisions impact our lives, our rights, and our communities. Though this participation in civil discourse is central to our American identity, some public officials are fighting to restrict voter access for partisan interests.
The Supreme Court’s 2013 decision in Shelby County v. Holder, which decimated a key provision of the Voting Rights Act eight years ago today, opened the floodgates for these officials to brazenly push anti-voter tactics that disproportionately disenfranchise voters of color. Without legislation like the John Lewis Voting Rights Advancement Act, the patterns of increasingly aggressive anti-voter legislation unleashed by Shelby will continue.
‘This is our generation’s crown jewel… It is how we realize the promise of our democracy for all.’ — @RepTerriSewell and @Wade4Justice discuss the fight to pass the John Lewis Voting Rights Advancement Act in Congress pic.twitter.com/GSvxaWNlBt
— NowThis (@nowthisnews) June 24, 2021
The Voting Rights Act of 1965 is a landmark piece of civil rights legislation ensuring all voters have access to the polls. It realized the promise of the 14th Amendment’s equal protection clause and the 15th Amendment’s ban on racial discrimination in voting. This legislation helped combat insidious anti-voter techniques including literacy tests and poll taxes, which were employed to suppress Black and Brown voters, particularly in the Jim Crow South. Since 1965, the Voting Rights Act has received broad bipartisan support from Congress to reauthorize the law four times — signed each time into law by a Republican president. Most recently, then-President George W. Bush signed the Voting Rights Act Reauthorization and Amendments Act of 2006 to extend the legislation for 25 more years.
Shelby County challenged long-standing provisions of the Voting Rights Act requiring certain states and localities to “pre-clear” changes to election laws and policies with the federal government. These jurisdictions were limited to those with a history of voter discrimination and low ethnic or language minority voter turnout. Many of the covered states were part of the Jim Crow South where minority groups were disenfranchised by tactics including poll taxes, literacy tests, and brutal violence. Under the Voting Rights Act, these jurisdictions were required to demonstrate that any voting law changes had neither a discriminatory intent nor a discriminatory outcome. Thus, the preclearance provisions served as a check on potentially discriminatory policies before a voter could be disenfranchised. Although the majority in Shelby County recognized that the preclearance tool helped “voter turnout and registration rates . . . approach parity” between covered and uncovered states, the Court struck down the preclearance provision — eliminating a federal check on potentially discriminatory policies.
Without the preclearance requirement, several states enacted new restrictive voting laws to create hurdles between the voter and the ballot box. Shortly after the ruling came down, the North Carolina General Assembly passed an omnibus election law that imposed a voter ID law, reduced early voting, eliminated out-of-precinct voting, and ended pre-registration for 16- and 17-year-olds. When this law was challenged, a federal appeals court found that North Carolina explicitly designed this 2013 omnibus election law to disenfranchise African Americans who had overwhelmingly voted for Democrats. While the state admitted to disenfranchising African American voters because they voted disproportionately Democratic, this revelation took time and litigation. During this process, how many voters stayed home from the polls or were turned away because they lacked the proper ID, went to the wrong precinct, or could not vote in the narrow early voting window?
States have also become increasingly more aggressive when purging their voter rolls. The Brennan Center for Justice continues to find that voter purge rates are higher in jurisdictions that were subject to preclearance before Shelby County (9.8 percent) than uncovered jurisdictions (6.8 percent) since 2013. If covered states purged voters at the same rate as the rest of the country, the Brennan Center estimates that 1.1 million fewer voters would have been purged between 2016 and 2018.
Without preclearance, the purges have to be challenged after they occur. This matters. If you look at the 2020 election results in formerly covered states like Georgia and Arizona, the races were decided by fewer than 15,000 votes each. As most voters do not know they have been removed from the rolls until they show up to vote, how many eligible voters are turned away from the ballot box after standing in line for hours? If a person stands in line for hours, only to discover that she has been purged from the voter rolls, how likely is she to repeat the experience in the next election? If 1.1 million fewer voters had been purged, less than three percent of this total would have to show up at the polls to possibly change the outcome of the 2020 election. When results turn on tens of thousands of votes, preclearance is essential to guarantee that no one who wants to exercise her right to vote is denied.
An analysis from our sister organization, The Leadership Conference Education Fund, found that since Shelby County, 13 states closed 1,688 polling locations between 2012 and 2018 with 1,173 closing between 2014 and 2018. Texas, Arizona, and Georgia closed the largest number of polling places. When a polling place closes or consolidates, there is a tangible impact on a voter’s access to the ballot box. The number of polling locations helps determine ease of access. Georgia closed 331 voting locations between November 2012 and June 2020, and in 2018, it had seven counties reduced to one polling site to serve hundreds of square miles. Without a vehicle or access to public transportation, exercising your right to vote becomes nearly impossible. Through bureaucratic maneuverings, local officials can close or move polling sites to influence who is able to turn out. Because these poll closures go unnoticed, unreported, or unchallenged, there is no record of the votes lost.
Since Shelby County, states previously under federal oversight have implemented several anti-voter tactics to deny voters access to the polls. States have adopted strict voter ID laws, limited early voting and vote-by-mail, and restricted voter registration often in response to high turnout from communities of color and other marginalized communities. Similarly, certain states have become more zealous in purging their voter rolls, defining the fundamental right to vote as something you have to use or lose. While major legislative change or dramatic voter roll purges make headlines, the quiet closure of polling locations is equally pernicious.
While these tactics aim to depress the vote, Congress can restore the full strength of the Voting Rights Act and undo much of the damage by Shelby County. Congress must continue holding hearings to examine modern day anti-voter efforts, and then lawmakers must swiftly introduce and pass the John Lewis Voting Rights Advancement Act to restore the Voting Rights Act and stem the tide of anti-voter legislation. In its 2013 decision, the Supreme Court invited Congress to update the preclearance formula to be more reflective of current voting patterns. That is what the John Lewis Voting Rights Advancement Act accomplishes. Through this bill, we can once again work toward a more perfect union.
Joel Park is a summer 2021 legal intern at The Leadership Conference on Civil and Human Rights.