Anabel Abarca

Associate Editor

Loyola University Chicago School of Law, JD 2020

Five years after the Supreme Court decision in Shelby County v. Holder, the effects of dismantling Section 5 of the Voting Rights Act are manifesting themselves across the United States. Since 2013, several states have passed laws that have the ability to suppress voters. Voters in Georgia and South Dakota have recently filed suits claiming the state’s laws and practices in the 2018 election amounted to voter suppression.

Shelby County v. Holder

Shelby County v. Holder was a landmark voting rights election case where the Supreme Court held that it was unconstitutional to use Section 4(b) of the Voting Rights Act (VRA) to determine which jurisdictions were subject to the
“pre-clearance” requirement of Section 5 of the VRA. The coverage formula in Section 4(b) of the VRA determined which jurisdictions (sometimes states, other times counties or cities) were put on the Section 5 “pre-clearance” list. Section 5 then required them to pre-clear any election law changes with the federal government. This included changes to voting locations or ID requirements. However, the Supreme Court in Shelby County reasoned that the coverage formula was out of date. Congress had chosen not to update the formula in the 2006 re-authorization of the VRA. By gutting Section 4(b) of the VRA, the Section 5 “pre-clearance” requirement was rendered useless. Justice Ruth Bader Ginsburg famously dissented by saying “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.” As a result of Shelby, there are currently no jurisdictions subject to the coverage formula of 4(b).

Initial Impact of Shelby County

States immediately changed laws in the wake of Shelby County. For example, after Alabama was no longer bound by the pre-clearance requirements of Section 4, it required absentee voters to include a photocopy of their ID in a separate envelope, when mailing their absentee ballot. Civil rights groups claimed that the photo ID requirement was racially discriminatory. They argued that Alabama had made it harder to obtain an ID when it eliminated a large number of DMV locations that were in majority black counties. This left minorities with fewer locations to go to in order to obtain an ID. Had Section 4’s coverage formula still been in place, Alabama would have had to clear such changes with the Justice Department for final approval before eliminating the DMV locations. A federal judge threw out the lawsuit in 2018 claiming that the state had important “regulatory interests” in passing the law.

VRA Compliance Post-2016

Other examples of action since Shelby County include mid-cycle redistricting plans in Daphne, Alabama and closures and reductions of polling places during the 2016 primary elections in Maricopa County, Arizona. In Maricopa County, the number of polling places was reduced by 70%. One polling place served 21,000 voters compared to another polling place outside of Maricopa that served 2,500 voters. The coverage formula used to cover Alabama and Arizona. This means the two jurisdictions would have previously submitted the changes to polling places to the Justice Department before implementation. Due to Shelby, compliance with the Section 5 no longer applies. Jurisdictions can now implement changes without Justice Department oversight.

Since Shelby County, state no longer have to comply with the coverage formula. Entire states used to be covered, such as Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, and certain counties in South Dakota. South Carolina passed a law after the Shelby County decision that imposed a voter ID requirement, curbed early-voting hours, and eliminated same-day voter registration. A district court judge upheld the law but the Fourth Circuit later struck down key portions. The judge wrote that the provisions had specifically targeted African Americans with “surgical precision.” The Supreme Court has declined to stay the ruling. Compliance with the VRA has again bypassed the Justice Department and it has been up to voters and civil rights groups to bring lawsuits against jurisdictions that pass onerous voting laws.

In the 2018 Georgia Governor’s election, Secretary of State changed its signature matching procedures in the runup to the November election. Those that had been flagged as potential non-citizens first had to be cleared by a deputy registrar when seeking to vote. These changes would likely not have been allowed under Section 4(b) or Section 5 of the VRA. However, because of Shelby the George Secretary of State was able to implement the changes just months prior to the elections. It took a US District Court judge to rule that the procedures were likely to result in the violation of voting rights for a large group of people before the changes were reversed. This is another example of forcing compliance with the still legal sections of the VRA through court actions instead of enforcement by the Justice Department.

Trump Administration Action Post-Shelby

The Trump Justice Department has not focused on challenging state laws that violate the VRA. For example, former Attorney General Jeff Sessions, announced in February 2017 that the DOJ would not continue its suit against the 2011 Texas voter ID law. The law required voters to present a limited array of government-issued IDs when voting in person, and did not include federal or state government IDs or student IDs. Civil rights groups were left to defend the government’s position in the lawsuit once Attorney General Sessions decided it would not do so. Civil rights groups condemned the Trump Administration’s decision to drop the claim against Texas. The civil rights groups argued that legitimate voters have been discriminated against and that the Texas law was passed with the intention of discriminating against minority voters. However, the Justice Department maintains that the Texas ID advances legitimate policy objectives.

The current Supreme Court is unlikely to reverse Shelby. This is exemplified by the Supreme Court upholding Ohio’s voter purges as well as North Dakota’s new voter identification requirements in 2018. Both of these were hotly contested just before the 2018 midterm elections. Unless the Trump administration reverses course on VRA enforcement or the Supreme Court reverses Shelby, it is likely that voters will have to rely on the courts to force states to comply with the valid sections of the VRA.