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Analysis

Filling the Voting Rights Hole Left by SCOTUS in Shelby County v. Holder

The need for Congress to pass the For the People Act and the John Lewis Voting Rights Advancement Act is acute.

June 22, 2021
SCOTUS
Robert Alexander/Contributor

This Friday marks eight years since the Supreme Court gutted a key provi­sion of the Voting Rights Act, one of this coun­try’s most success­ful pieces of civil rights legis­la­tion. Today, with state lawmakers taking advant­age of the gaping hole in voting rights protec­tions left by Shelby County v. Holder, the need for action is urgent.

There are two bills that Congress can use to fill that hole: the For the People Act and the John Lewis Voting Rights Advance­ment Act. The first has been passed by the House as H.R. 1 and is before the Senate this week as S. 1. It sets national stand­ards that make it easier for Amer­ic­ans to vote, and it would mitig­ate the effect of many of the state laws passed making it harder. The second would stop many of those laws from taking effect in the first place.

At the heart of the VRA is the “preclear­ance” system estab­lished under Section 5 of the law. Under preclear­ance, states and local­it­ies with a history of voting discrim­in­a­tion must get certi­fic­a­tion in advance that any elec­tion change they wanted to make would not be discrim­in­at­ory. The VRA included a formula, set out in Section 4, that iden­ti­fied which states and local­it­ies were subject to this review.

In Shelby County, a 5–4 major­ity inval­id­ated that formula, ruling that it was too out-of-date. For nearly 50 years, the preclear­ance regime blocked discrim­in­at­ory voting changes in several states — Alabama, Alaska, Arizona, Geor­gia, Louisi­ana, Missis­sippi, South Caro­lina, Texas, and Virginia — and a number of local­it­ies else­where. Between 1998 and 2013 alone, Section 5 blocked 86 discrim­in­at­ory changes, includ­ing 13 in the 18 months before Shelby County.

But even as the Supreme Court cred­ited the VRA for improv­ing condi­tions for voters of color, a major­ity decided that Section 4’s preclear­ance formula was no longer consti­tu­tional because “things have changed dramat­ic­ally.” As Justice Ruth Bader Gins­burg poin­ted out in her dissent, however, it made no sense to get rid of a policy because it was work­ing. She wrote pres­ci­ently, “Throw­ing out preclear­ance when it has worked and is continu­ing to work to stop discrim­in­at­ory changes is like throw­ing away your umbrella in a rain­storm because you are not getting wet.”

During the eight years since then, the rain­storm has grown into a torren­tial down­pour. New voting restric­tions, like stricter voter ID laws, have prolif­er­ated across the coun­try. Voter purges — the removal of voters from the rolls — have surged in local­it­ies once covered by preclear­ance. The Bren­nan Center has calcu­lated that if once-covered juris­dic­tions purged at the same rates as uncovered juris­dic­tions between 2012 and 2018, 3.1 million fewer voters would have been purged. Polling place clos­ures in previ­ously covered juris­dic­tions, along with fewer resources alloc­ated in places that are becom­ing less white over time, has meant long wait-times to vote. And Bren­nan Center research shows that Black and Latino voters are more likely than white voters to exper­i­ence the longest wait times on Elec­tion Day.

This year, we are seeing the most aggress­ive voter suppres­sion effort since Jim Crow. To date, 17 states have enacted 28 laws that restrict voting access. Several of these laws have already been chal­lenged in court. But preclear­ance could have stopped many of these policies in their tracks, without wast­ing the time and resources of our legal system or risk­ing voter confu­sion.

In Shelby County, the Supreme Court left the ball squarely in Congress’s court, direct­ing it to pass a renewed Voting Rights Act with a preclear­ance formula that “speaks to current condi­tions.” Congress is plan­ning to do just that in the John Lewis Voting Rights Advance­ment Act. The bill — a new version of which is expec­ted to be intro­duced later this year — will contain a revised cover­age formula that looks at more modern issues of discrim­in­a­tion. It will also set forth certain discrim­in­at­ory voting prac­tices — like voter ID laws and polling place clos­ures — that are subject to preclear­ance regard­less of where the policies are imple­men­ted. And the bill has proced­ures for states or local­it­ies to show that preclear­ance does­n’t make sense for them anymore, among several other provi­sions.

Given the wave voter suppres­sion laws enacted this year, and possibly more to come from states like Arizona, Texas, and Ohio, the impact of Shelby County has never been felt more acutely. Congress can and must act to once again make good on the prom­ise of the 15th Amend­ment. That means passing the For the People Act and restor­ing the Voting Rights Act so that no voter faces discrim­in­a­tion at the ballot box.