Five years ago this week, the Supreme Court invalidated a key section of the Voting Rights Act (VRA) that had required states with a history of discrimination to have new voting laws approved before those laws took effect. The 5-4 decision in Shelby County v. Holder had an immediate impact for voters across the country as new voting restrictions became a reality.
The Brennan Center and allies in the voting rights community have taken states to court to prevent discrimination that the law would have stopped. Myrna Pérez, head of the Brennan Center’s voting rights program, reflects on the decision, how the national voting rights landscape has evolved since, and details fights ahead in protecting the vote for all Americans.
What was this case about?
MP: This case involved two parts of the Voting Rights Act of 1965, a landmark piece of civil rights legislation designed to prevent any state or local laws and policies that keep people, based on their race, from exercising their right to vote.
It started when officials in Shelby County, Alabama, sued in federal court over Section 5 of the Voting Rights Act. It’s the part of the law that requires states with a history of racial discrimination to get any changes to their voting laws or procedures cleared by either the Justice Department or by a federal court. Another section of the law, Section 4, outlined a formula that defined which areas of the country were subject to that backstop. The case made its way to the Supreme Court, where justices ruled in a 5-4 decision that the formula for determining which states need preclearance was too broad. Importantly, the Supreme Court did not say that preclearance itself is unconstitutional.
It’s kind of like a security system on a house that is unusable without keying in a new code. In an ideal world, we wouldn’t need the system because people would never break into homes. But we know break-ins happen, just like we know some states will try to make it harder for folks to vote. In order to have a working system, Congress has to provide a new code to the VRA.
What was your first reaction when you heard the decision?
MP: I actually started crying. It was very disappointing. It’s a violation of the promise that our country makes, that when you step into the ballot box you’ll be free from racial discrimination. I was surprised, too. I thought when push came to shove the Court would realize just how unprincipled and disruptive it would be to take away preclearance. It was by far the most effective tool at our disposal to eradicate racial inequality in voting.
In the days and weeks after, was there a galvanizing of the field?
MP: There was a definite rallying cry. We had a common cause. We spent a ton of time together trying to look for a way forward and trying to monitor and get a lot of help to places where we thought they needed it.
How did the change immediately play out at the state level?
MP: There were a lot of announcements that laws that had been on hold were going to be pushed forward. On the same day as the Supreme Court decision, Texas declared it would be moving forward with a strict photo ID law that had been blocked under Section 5. Then soon after, North Carolina lawmakers passed a strict photo ID law, along with other restrictions to early voting and voter registration. Alabama and Mississippi also moved forward on strict photo ID laws that had been passed before the ruling. The consequences of the court’s decision were immediate. It was difficult to see.
Have advocacy groups been successful fighting back?
MP: We really had to step into the breach, asking the tough questions about these laws that would have otherwise been challenged during the preclearance process. It’s an effort that’s taken place so far largely in state and federal courts.
One of the really big things about preclearance that was so helpful is that it put the burden of proof on the jurisdiction to show the change in question was not going to make voters worse off. We now have the burden of showing that the change did disenfranchise people, or that it has the potential to. It’s an ongoing battle, and we’ve got a lot more work to do.
How has the voting rights conversation changed in the five years since the decision?
MP: I think we see a number of states that have more restrictive legislation than they would have if preclearance had been in place. I think we have seen some lawmakers push the envelope and see how far they can go with laws that disenfranchise people. And I do think that it contributed to a real ugliness in the country, with racism and the acceptance of racism. We basically had the Supreme Court saying: “We’ve done enough.” The court took away a protection that was needed when it was passed in 1965 and is also needed today.
MP: I still think we need to get preclearance back. We need to revise Section 4 and have an amended Voting Rights Act. It should be a legislative priority among people who care about ending discrimination and protecting our democracy. And I think we’ll continue to take a lot of our fights to the courts and directly to the states.