Shelby County v. Holder: Implications of a Weakened Voting Rights Act

African Americans’ right to vote under the Fifteenth Amendment was reaffirmed with the establishment of the far-reaching Voting Rights Act (VRA) of 1965, which banned onerous literacy tests and other restrictive measures that were a noticeable facet of the Jim Crow era.[1] In particular, Section 4 of the VRA prevents areas where “less than 50 percentum of the persons of voting age residing therein” were registered by or voted in the 1964 election from restricting or denying individuals the right to vote.[2] This was done in order to deter “the purpose ... of denying or abridging the right to vote on account of race or color.”[3] This method identified the states and locales that would need to comply with the VRA’s Section 5, which essentially prevented such areas from making any change to their election laws without federal approval (otherwise known as “preclearance”).[4][5] The areas under preclearance were primarily in the South (Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia), along with Arizona, Alaska, and certain parts of Arizona, Hawaii, Idaho, and North Carolina.[6] While the original intention was for Section 5 and the preclearance system to only be law for five years, Congress had repeatedly kept it active over the decades since the act’s inception.[7] With its 2013 ruling in Shelby County v. Holder, however, the United States Supreme Court struck down Section 4 of the VRA, finding it to be an unconstitutional overreach of federal power.[8] Minority voters have been negatively impacted by the laws enacted in the aftermath of Shelby, and it is imperative that the decision be overturned.

In the majority decision of Shelby, Chief Justice Roberts details the constitutional principle of state’s rights and how those states targeted by the VRA’s Section 4 were not being treated equally as other states.[9] Roberts’ central argument centers around why Section 4 is inessential: he notes that “disparities in voter registration and turnout due to race were erased” and consequently how modern usage of Section 4 still relies on old data for determining which areas must be subject to preclearance.[10] Justice Roberts notes that, “Today the Nation is no longer divided along those [racial] lines, yet the VRA continues to treat as if it were,” arguing that the VRA’s Section 4 is not relevant any longer.[11] While Justice Roberts rightfully acknowledges the great strides towards equality that have come with the passage, implementation, and continued execution of the VRA, he fails to acknowledge many of the barriers for voters of color that are still in play. As Justice Ginsburg notes in her dissent, “second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first-generation barriers that originally triggered pre-clearance in those jurisdictions.”[12] Such modern-day barriers include the purging of eligible voters from state voter rolls and voter suppression, both of which have the effect of subverting the democratic process.[13]

However, Ginsburg may be specifically making reference to barriers such as Voter ID laws, which require identification (such as a government-issued photo ID) in order for individuals to vote and which have been noted to disproportionately target people of color.[14] As per a 2006 survey conducted by the Brennan Center for Justice, approximately 5.5 million African American adults, or 25% of eligible African American voters, did not have government-issued photo ID.[15] And, a Texas voter ID law requiring driver’s licenses and government-issued personal identification from before the Shelbydecision was regarded by the federal government as discriminatory; the Department of Justice (DOJ) noted that “a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this identification.”[16] Justice Roberts’ opinion categorically ignores this very real threat to suffrage, instead portraying a post-racial society where measures such as the VRA’s Section 4 are no longer necessary.

The aftermath of Shelby saw numerous changes to election laws in states and areas previously covered under the VRA. For example, while Alabama had passed a photo ID law in 2011, it did not pursue federal approval, and the law was not implemented; however, a mere day after Shelby was decided, Alabama indicated its intent to implement the photo ID law for the 2014 election cycle.[17] This was a clear sign that the Shelby decision would set a precedent that laws which normally would be rejected under pre-clearance could now be passed. In Augusta-Richmond County, Georgia, local elections were moved from November to July in 2014, which was previously not allowed by the DOJ under the VRA’s preclearance system as it would result in decreased turnout among African American voters.[18] There was about even turnout between whites and African-Americans in the 2012 November general elections, but 10% less African American turnout than white turnout in the 2012 July primaries, so moving local elections to July would have deliberately capitalized upon this difference in turnout.[19] In North Carolina during the 2016 election cycle, there were visible restrictions put in place; as Hannah Walker of the Huffington Post notes, “In the first week of early voting, 158 fewer polling stations were available across 40 counties with high concentrations of Black voters than in 2012.”[20] States such as Texas, Alabama, Mississippi, Virginia, and South Carolina, all of which were under the VRA’s preclearance system, instituted restrictions to voting, such as the aforementioned photo ID requirement, for the first time in a presidential election year in 2016.[21][22] While it is unclear whether or not such measures could have skewed the election, it is evident that these laws restricted the proliferation of suffrage to people of color, and would not have been implemented had the Shelby case not been decided in the manner it was.

Chief Justice Roberts is right when he notes the need for states to be treated equally, and the fact that the United States has made great progress towards racial equality since the Civil Rights Era. The fact remains, though, that the post-racial society Chief Justice Roberts portrays in the Shelby case has not been actualized, and the major problems regarding voter ID are concentrated in many of the very same states that were covered under the VRA’s Section 4. Other states that were not previously subject to preclearance are also passing voter ID laws. Voting restrictions are now being implemented in states such as Ohio, Indiana, and Wisconsin, indicating that the precedent set forth in Shelby has opened up a more widespread threat to minority voting.[23] And, as noted before, while many claim that such policies are necessary in order to “limit the potential for voter fraud,” there were only 35 credible voter fraud allegations from 2000 to 2014 out of over 800 million cast ballots.[24] With such a low frequency of legitimate voter fraud, and the clear evidence of how voter ID laws negatively affect minority voters, it’s evident that the new laws are clear attempts to install voting restrictions on a specific portion of the electorate.  

Litigation, such as that concerning the voter ID laws in North Carolina, has been shown to help; the US Fourth Circuit Court of Appeals’ decision in North Carolina State Conference of the NAACP v. McCrory (2016) specifically highlighted the discriminatory measures of the North Carolina voter ID law (such as photo ID to vote as well, reducing the early voting period from 17 days to 10 days, and a ban on pre-registration for those of sixteen and seventeen years of age) and struck it down.[25] [26] Judge Motz highlighted the “surgical precision” to which the laws targeted African-Americans, noting how, “African Americans disproportionately used early voting in both 2008 and 2012.”[27] Motz also detailed how “African Americans also disproportionately used pre-registration,” thus making clear of overt discrimination behind the basis of these laws.[28]

With the help of advocacy groups and further litigation, the effects of those practices that unfairly target minority groups’ right to suffrage will be lessened for the time being. Even though such a process exists for striking down discriminatory measures, such laws should never have the chance to be promulgated, as it was pre-Shelby County v. Holder. Until the Supreme Court reverses its position on Section 4, it is very likely that voter ID laws and unorthodox changes to the electoral process will continue to be prominent in our democracy.

Sources:

[1] “Voting Rights Act of 1965,” History.com(2009). Accessed 19 Jul. 2018, https://www.history.com/topics/black-history/voting-rights-act.

[2] Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (1965).

[3] Ibid.

[4] “Shelby County v. Holder.” Oyez.org. Accessed 18 Jul. 2018, www.oyez.org/cases/2012/12-96.

[5] Schwartz, John. “Between the Lines of the Voting Rights Act Opinion”, The New York Times(2013). Accessed 19 Jul. 2018, https://archive.nytimes.com/www.nytimes.com/interactive/2013/06/25/us/annotated-supreme-court-decision-on-voting-rights-act.html.

[6] “About Section 5 of the Voting Rights Act”, U.S. Department of Justice(2017). Accessed 10 Aug. 2018, https://www.justice.gov/crt/about-section-5-voting-rights-act.

[7] “Shelby County v. Holder.” Oyez.org. Accessed 18 Jul. 2018, www.oyez.org/cases/2012/12-96.

[8] Ibid.  

[9] Schwartz, John. “Between the Lines of the Voting Rights Act Opinion”, The New York Times(2013). Accessed 19 Jul. 2018, https://archive.nytimes.com/www.nytimes.com/interactive/2013/06/25/us/annotated-supreme-court-decision-on-voting-rights-act.html.

[10] Shelby County, Alabama, v. Holder, Attorney General, et al. 570 U.S. ___ (2013).

[11] Ibid.

[12] Ibid.

[13] “Barriers to Voting”, NAACP Legal Defense and Educational Fund. Accessed 11 Aug. 2018, http://www.naacpldf.org/case-issue/barriers-voting.

[14] Lopez, German. “The Supreme Court just refused to revive North Carolina’s discriminatory voter ID law,” Vox(2017). Accessed 20 Jul. 2018, https://www.vox.com/2015/8/6/9106055/north-carolina-voting-rights.

[15] “Citizens Without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship and Photo Identification,” Brennan Center for Justice(2006). Accessed 19 Jul. 2018, http://www.brennancenter.org/sites/default/files/legacy/d/download_file_39242.pdf.

[16] Cohen, Andy. “How Voter ID Laws Are Being Used to Disenfranchise Minorities and the Poor,” The Atlantic(2012). Accessed 30 Jul. 2018. https://www.theatlantic.com/politics/archive/2012/03/how-voter-id-laws-are-being-used-to-disenfranchise-minorities-and-the-poor/254572/.

[17] “Democracy Diminished: State and Local Threats to Voting Post-Shelby County, Alabama v. Holder,” NAACP Legal Defense Fund(2016). Accessed 20 Jul. 2018, http://www.naacpldf.org/files/publications/Democracy%20Diminished-State%20and%20Local%20Voting%20Changes%20Post-Shelby%20v.%20Holder_1.pdf.

[18] Baumgarten, Henry. “Shelby County v. Holder’s Biggest and Most Harmful Impact May Be on Our Nation’s Smallest Towns,” Campaign Legal Center(2018). Accessed 19 Jul. 2018, https://campaignlegal.org/update/shelby-county-v-holders-biggest-and-most-harmful-impact-may-be-our-nations-smallest-towns.

[19] Roth, Zachary. “Georgia GOP dusts off Jim Crow tactic: Changing election date,” MSNBC(2013). Accessed 31 Jul. 2018, http://www.msnbc.com/msnbc/gop-revives-jim-crow-tactic.

[20] Walker, Hannah. “Voter Suppression in a Post-Shelby World,” Huffington Post(2016). Accessed 19 Jul. 2018, https://www.huffingtonpost.com/latino-decisions/voter-suppression-in-a-po_b_13288426.html.

[21] Ford, Matt. “The Entirely Preventable Battles Raging Over Voting Rights,” The Atlantic(2017). Accessed 19 Jul. 2018. https://www.theatlantic.com/politics/archive/2017/04/shelby-county-v-holder-voting-rights-supreme-court/522867/.

[22] “New Voting Restrictions in America,” Brennan Center for Justice(2017). Accessed 20 Jul. 2018. https://www.brennancenter.org/new-voting-restrictions-america.

[23] Ibid.

[24] Lopez, German. “The Supreme Court just refused to revive North Carolina’s discriminatory voter ID law,” Vox (2017). Accessed 20 Jul. 2018, https://www.vox.com/2015/8/6/9106055/north-carolina-voting-rights.

[25] Ibid.

[26] “North Carolina State Conference of the NAACP v. McCrory”, Harvard Law Review (2017). Accessed 11 Aug. 2018. https://harvardlawreview.org/2017/04/north-carolina-state-conference-of-the-naacp-v-mccrory/.

[27] North Carolina State Conference of the NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016).

[28] Ibid.