Voting Rights in the Wake of Shelby County v. Holder

In June 2013, the Supreme Court issued a decision in the case of Shelby County v. Holder, where the Court ruled that Section 4 of the Voting Rights Act was unconstitutional. The contentious 5-4 decision eliminated the Justice department’s mandatory oversight of the electoral process in the Deep South. As a result, many individuals have openly expressed fear that the repeal of Section 4 will lead to the return of Jim Crow and new wave of voter suppression.

Broadly speaking the Voting Rights Act was designed to enforce the 14th and 15th Amendments of the U.S. Constitution. The 14th Amendment, which granted African Americans citizenship and equal protection under the law, and the 15th amendment, which banned the state and federal government from denying citizens the right to vote based on race, were being systematically violated in many places in the American South. Poll taxes, literacy tests, all white primaries, and flat out intimidation were all being employed to stop African Americans from voting.

In 1965, Congress passed the Voting Rights Act to tackle these discriminatory voting practices head on. The Voting Rights Act contains general provisions apply to the entire country. Section 2 of the voting Rights Act essentially restated the 14th and 15th amendments and banned vote suppression (denying people the right to vote) and vote dilution—which is a more complex idea that involves the use of electoral arraignments that do not count each vote as equally important. However, the Voting Rights Act also contained extra enforcement provisions that did not apply to the entire country, but rather only applied to places where vote suppression was particularly extreme—states in the American South.

It is important to note that the Voting Rights Act was not the first effort to enforce voting rights in the South. The problem with previous attempts to enforce voting rights stemmed from what former Chief Justice of the Supreme Court Earl Warren called “an unremitting and ingenious defiance of the Constitution.” Challenges to discriminatory voting practices are fundamentally reactive in nature. A discriminatory voting law must first be passed before it can be challenged in the courts. In addition, it is extremely costly and time consuming to challenge electoral laws, as these types of lawsuits often involve many thousands of hours of research combing through election returns. As a result, for every discriminatory law that was struck down in court, a new slightly different law was enacted to take its place.   As former Mississippi Governor Ross Burnett once famously stated, “legislatures can change laws faster than courts can overturn them.”

The Voting Rights Act took a proactive approach to dealing with a particularly pernicious problem stemming from the difficulty associated with challenges to discriminatory voting laws. The Voting Rights Act aimed to reverse the fundamentally reactive nature of challenges to violations of voting rights by shifting the burden of proof of discrimination from the plaintiffs to the states.

Section 5 of the Voting Rights Act established what is called “preclearance.” Namely, states that fall under section 5 of the Voting Rights Act had to clear any changes in voting laws, districting plans and other electoral instruments by the Justice Department and prove that they did not have a racially discriminatory effect. This was a dramatic reversal from the previous system, where plaintiffs had to prove that a certain set of laws had a discriminatory purpose. The preclearance provision provided what the Supreme Court called an “array of potent weapons against the evil of vote denial” and allowed the federal government previously unprecedented ability to enforce voting rights in the states.

So what states were selected to be subject for preclearance from the Justice Department? Section 4 of the Voting Rights Act laid out the formula that determined what states (or other political subdivision) were subject to preclearance. States were subject to preclearance if they met two conditions:

1.) As of Nov 1, 1964, the state maintained a test or device designed to suppress minority turnout

2.) Less than 50 percent of the state’s voting-age residents were registered on November 1, 1964, or voted in the presidential election of 1964.

The states that met these criteria were 6 states in the Deep South, Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, as well as 26 counties in the state of North Carolina and the state of Alaska. The number of covered states expanded in 9 in 1975, with the inclusion of Texas and Arizona when Congress renewed the Voting Rights Act and expanded the coverage to include Latinos, Asians and Native Americans. The Act was renewed again in 1982, 1992 and most recently in 2006, using the coverage formula initially developed in 1964.

However, lawmakers within many of the covered jurisdictions felt that they were being unfairly burdened by the preclearance requirement. Shelby County, Alabama challenged sections 4 and 5 of the Voting Rights Act as Unconstitutional. The constitutionality of the Voting Rights Act was initially upheld in District Court and by the Court of Appeals, which lead Shelby County to appeal the decision to the Supreme Court. The Supreme Court decided to hear the case. The end result of this legal process was that the Supreme Court found Section 4 of the Voting Rights Act to be unconstitutional on the grounds that it, “ Section 4 of the Act applied that requirement only to some States—a dramatic departure from the principle that all States enjoy equal sovereignty.”

The Court stated the nearly 50-year-old criteria used determine what states qualified for preclearance is inappropriate given how much the state of voting rights, vote suppression, and disparities between white and black turnout had changed since 1964. As evidence of this, Justice Roberts, as part of his majority opinion, noted that African American turnout is now at parity with whites, and black turnout even exceeds white turnout in some of the states covered by section 5. Moreover, the poll tax, and other devices used to suppress minority political participation were outlawed with the passage of the 24th amendment and have not existed for 50 years.  In essence, the Supreme Court said that you, “cannot punish the son for the sins of the father” and stuck down section 4.

So what are the likely consequences of the court’s decision? There are two primary implications.

The first is that the states are now free to pass legislation pertaining to voting without being subject to preclearance. And the possibility of states making use of this ability is not purely academic. Nearly all of the states previously covered by section 5 of the voting rights act have passed more stringent voter ID laws in the wake of the Shelby County decision. In addition, a number of these states previously covered by section 5 have reduced early voting periods and eliminated same day registration. Many observers, particularly observers on the left, have expressed the fear that the Shelby County decision combined with the passage of my voter ID laws will usher in a new Jim Crow era of vote suppression.

However, the most recent political science research on the effect of voter ID laws on turnout suggests that the fear of a return to Jim Crow might be overblown. A number of recent empirical analyses of election data have demonstrated minority turnout has not been uniquely affected by the passage of voter ID laws. Thus far, voter ID laws have been shown to suppress turnout, but not in a way that disproportionately targets minorities, although it is important to note that these findings represent an initial investigation rather than a firmly established fact, especially considering that some research has demonstrated that ethnic and racial minorities are more likely to be asked for IDs at the polls. A potentially greater concern is an increase of “vote dilution” through the creation of electoral districts designed to minimize minority electoral representation.

The second implication of the court’s decision is that we will see the true importance of sections 4 and 5 of the VRA given that we are likely to experience an extended period of their absence. Congress must pass a new coverage formula; replace section 4 with an alternative the Court deems constitutional, if Section 5 of the VRA is every going to be implemented again. It is important to keep in mind that the Court did not find preclearance unconstitutional. Rather, the Court only struck down the coverage formula that was used to determine what states and counties were covered by section 5. However, given the highly polarized and gridlocked nature of the recent Congresses it seems unlikely that a new coverage formula will be enacted anytime soon.

In conclusion, the Shelby County decision ushered in a new era of voting rights in the United States. What remains to be seen is to what degree the Supreme Court was correct in their belief that conditions now were fundamentally different than they were in the 1960s?







About Joshua Zingher

Josh Zingher is an assistant professor at Old Dominion University. His research focuses on voting behavior, elections, and representation.

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