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Legislation

The Effects of Shelby County v. Holder

In the states previously covered by preclearance, Shelby County v. Holder left massive dents in the infrastructure we have to ensure that all Americans are able to have their voices heard.

Published: August 6, 2018

The Voting Rights Act inaug­ur­ated a new era of demo­cracy in the United States. Nearly a century after the Fifteenth Amend­ment was rati­fied, Congress finally put teeth into its prom­ise that no citizen could be denied the right to vote based on race.

The VRA has been among the most success­ful pieces of federal legis­la­tion in the history of the coun­try.  To take just one example, in the twenty years follow­ing the law’s passage, the dispar­ity in regis­tra­tion rates between white and black regis­tra­tion rates dropped from nearly 30 percent­age points in the early 1960s to eight just a decade later. Based on this success, the VRA has been reau­thor­ized multiple times—­most recently, in 2006. The latest reau­thor­iz­a­tion passed both cham­bers of Congress with deep bipar­tisan support – passing unan­im­ously in the Senate – and it was signed by George W. Bush.

At the center of the VRA’s success was Section 4 – commonly referred to as the cover­age formula. The cover­age formula determ­ined which juris­dic­tions had to “preclear” changes to their elec­tion rules with the federal govern­ment before imple­ment­ing them, based on their history of race-based voter discrim­in­a­tion. Preclear­ance was massively success­ful at improv­ing voting access in covered juris­dic­tions.

In 2013, however, the Supreme Court struck down the cover­age formula in a case called Shelby County v. Holder. In a 5–4 decision, the Court reasoned that the cover­age formula was out of date – despite Congress’s determ­in­a­tion that it was still needed. The ruling rendered the Section 5 preclear­ance system effect­ively inop­er­able.

The decision in Shelby County opened the floodgates to laws restrict­ing voting through­out the United States. The effects were imme­di­ate. Within 24 hours of the ruling, Texas announced that it would imple­ment a strict photo ID law. Two other states, Missis­sippi and Alabama, also began to enforce photo ID laws that had previ­ously been barred because of federal preclear­ance.

The Bren­nan Center for Justice has consist­ently found that states previ­ously covered by the preclear­ance require­ment have engaged in recent, signi­fic­ant efforts to disen­fran­chise voters. A 2018 Bren­nan Center report concluded that previ­ously covered states have purged voters off their rolls at a signi­fic­antly higher rate than non-covered juris­dic­tions. Our 2018 State of Voting Report found that previ­ously covered states have enacted a series of laws and others meas­ures that restrict voting since Shelby County ended preclear­ance.

Texas

In July 2011, then-Texas Governor Rick Perry signed SB 14 into law. The law greatly restric­ted the forms of accept­able IDs voters had to present to cast a ballot. Now, voters were compelled to present an unex­pired photo ID from a list of seven accept­able docu­ments. Experts estim­ated that over 600,000 registered Texas voters did not have an accept­able ID under the new law.

Under Section 5 require­ments, Texas filed a federal lawsuit seek­ing preclear­ance to enforce SB 14. The Bren­nan Center and co-coun­sel repres­en­ted the Texas NAACP and the Mexican Amer­ican Legis­lat­ive Coun­sel (MALC) in oppos­i­tion in the case Texas v. Holder. In August 2012, the U.S. District Court for the District of Columbia rejec­ted the law on the grounds that Texas was unable to prove that SB 14 law would not discrim­in­ate against African-Amer­ican and Latino voters.

Within hours of the Shelby County decision, Texas Attor­ney General Greg Abbott said in a state­ment, “With today’s decision, the State’s voter ID law will take effect imme­di­ately. Redis­trict­ing maps passed by the Legis­lature may also take effect without approval from the federal govern­ment.” In response, the Bren­nan Center along­side part­ners at the Lawyers Commit­tee for Civil Rights, the NAACP, Jose Garza, Robert Notzon, Gary Bled­soe, and Clay Bonilla filed a complaint on behalf of the NAACP of Texas and MALC in Septem­ber 2013. The complaint in NAACP v. Steen argued that SB 14 viol­ated Section 2 of the Voting Rights Act, a provi­sion not affected by the Shelby County decision.

The litig­a­tion in Steen was ulti­mately success­ful in stop­ping SB 14 after the Fifth Circuit upheld a District Court ruling that the law viol­ates the VRA and the Consti­tu­tion. However, after Texas passed a new law, SB 5, the Fifth Circuit upheld Texas’s new law in the subsequent case Veasey v. Abbott and allowed the state to imple­ment SB 5.

North Caro­lina

Less than two months after Shelby County, North Caro­lina enacted a far-reach­ing and perni­cious voting bill. HB 589 insti­tuted a strict photo ID require­ment; curtailed early voting; elim­in­ated same day regis­tra­tion; restric­ted pre-regis­tra­tion; ended annual voter regis­tra­tion drives; and elim­in­ated the author­ity of county boards of elec­tions to keep polls open for an addi­tional hour. The litany of restric­tions in this bill is possibly the most restrict­ive bill passed after the collapse of Section 5 protec­tions due to Shelby County.

The bill was initially set to be a narrower photo ID require­ment. After Shelby County, however, North Caro­lina legis­lat­ive lead­ers expan­ded the scope of the bill to become much more compre­hens­ive in rolling back access to demo­cracy.

Imme­di­ately, the Depart­ment of Justice, the North Caro­lina State Confer­ence of the NAACP, the League of Women Voters, and other affected groups and indi­vidu­als sued the state. The Bren­nan Center for Justice submit­ted an amicus brief in support of the plaintiffs in the case NAACP v. McCrory.

The U.S. Court of Appeals for the Fourth Circuit struck down the law in July 2016, find­ing that it targeted “African Amer­ic­ans with almost surgical preci­sion.” The court ruled that HB 589 viol­ated Section 2 of the Voting Rights Act and the Consti­tu­tion. On May 15, 2017, the Supreme Court denied North Caro­lin­a’s peti­tion for writ of certi­or­ari.