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Analysis

Q&A: Voting Rights Five Years After the Supreme Court’s Shelby County Decision

The landmark case had an immediate impact for voters across the country as new voting restrictions became a reality. We look at how the national voting rights landscape has evolved since, and detail fights ahead in protecting the vote for all Americans.

June 25, 2018

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.

What’s next?

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.