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Analysis

Voting Rights in America, Six Years after Shelby v. Holder

It remains clear that we need to restore and revitalize the Voting Rights Act.

  • Max Feldman
June 25, 2019

Six years ago today, the Supreme Court signi­fic­antly weakened the Voting Rights Act. In its June 25, 2013 ruling in Shelby County v. Holder, the Court struck down with a 5–4 major­ity a provi­sion of the Voting Rights Act that determ­ined which juris­dic­tions with a history of discrim­in­a­tion had to “pre-clear” changes to their elec­tion rules with the federal govern­ment prior to imple­ment­ing them. By strik­ing down this so-called cover­age formula, the Court rendered the preclear­ance provi­sion a dead letter.

In his major­ity opin­ion, Chief Justice John Roberts argued that the cover­age formula was no longer “groun­ded in current condi­tions” because the “coun­try has changed” since the formula was first adop­ted in 1965. Justice Ruth Bader Gins­burg, in dissent, observed that the coun­try has changed precisely because of the effect­ive­ness of the preclear­ance regime. She wrote that trash­ing preclear­ance was “like throw­ing away your umbrella in a rain­storm because you are not getting wet.”

So who was right? Consider the follow­ing facts. The day the Shelby decision was handed down, Texas offi­cials announced their inten­tion to imple­ment a strict voter ID law that had previ­ously been denied preclear­ance – a law that the federal courts even­tu­ally found to be discrim­in­at­ory, follow­ing years of litig­a­tion. Soon after, Alabama and Missis­sippi followed suit with their own photo ID laws, and North Caro­lina passed an omni­bus elec­tion law that included restric­tions such as strict photo ID and cutbacks to early voting. A federal court later struck down the North Caro­lina law, find­ing that it had been passed with a discrim­in­at­ory purpose. So far this year, five states have passed (or are poised to pass) signi­fic­ant laws restrict­ing access to the vote – three of which were previ­ously subject to preclear­ance. And these laws are just a part of the post-Shelby story, which includes suspect poll clos­ures, a signi­fic­ant uptick in voter purges, and other forms of voter suppres­sion.

Six years after Shelby, it is clear that “current condi­tions” demand that we restore and revital­ize the Voting Rights Act.

There has been progress toward that goal. At the start of the year, Demo­cratic lawmakers intro­duced and then passed a sweep­ing demo­cracy reform bill through the House of Repres­ent­at­ives, which included a commit­ment to restor­ing the Voting Rights Act. In Febru­ary, Repres­ent­at­ive Terri Sewell (D-Ala.) and Senator Patrick Leahy (D-Vt.) re-intro­duced the Voting Rights Advance­ment Act, which includes an updated cover­age formula. And in March, Repres­ent­at­ive Jim Sensen­bren­ner (R-Wis.) re-intro­duced the Voting Rights Amend­ment Act, which also includes an updated cover­age formula, and is backed by a bipar­tisan group of co-spon­sors. Lawmakers are work­ing to docu­ment the present state of voting rights and voter suppres­sion in states across the nation, in order to meet the Supreme Court’s mandate that an updated cover­age formula address current condi­tions on the ground.

Repres­ent­at­ive Sensen­bren­ner’s efforts under­score that, until very recently, protect­ing the voting rights of people of color enjoyed strong bipar­tisan support. The Voting Rights Act was re-author­ized in 2006 with over­whelm­ing bipar­tisan support in Congress. It was signed into law by Pres­id­ent George W. Bush.

Lawmakers recog­nized then – as they should now – that the Voting Rights Act repres­ents what is best about our nation. At our best, Amer­ic­ans share an unbreak­able commit­ment to making real the prom­ise of equal­ity for all people contained in our found­ing docu­ments. On this day, as we reflect on the damage wrought by the Shelby decision, let us recom­mit ourselves to real­iz­ing that prom­ise.

(Image: Alex Wong/Getty)