Activists attend a voting rights rally in 2014 in Washington, DC. The rally marked the one-year anniversary of the Supreme Court decision in Shelby County v. Holder which held a section of the Voting Rights Act of 1965 is unconstitutional. (Photo by Win McNamee/Getty Images)
It hadn’t even been a day since the U.S. Supreme Court dismantled one of the pillars of voting rights in America, and North Carolina lawmakers weren’t wasting any time.
Republican legislators had been contemplating a bill that would require photo identification to vote. The bill had plenty of support, but it had spent the past two months sitting in committee while lawmakers waited for the Supreme Court to determine whether the state could go much further.
North Carolina was among a handful of states that couldn’t change its election laws or procedures without approval from the U.S. Department of Justice. Preclearance, as the practice was known, was part of the Voting Rights Act of 1965, and applied only to a handful of states and counties deemed to have exceptionally troubling records when it came to disenfranchising minority voters.
On June 25, 2013, the Supreme Court gave North Carolina its answer. By a 5-4 decision, the court agreed with lawyers for Shelby County, Alabama, and ruled that the formula the Voting Rights Act used to determine which jurisdictions needed preclearance was unconstitutional.
Had the Supreme Court’s ruling in Shelby County v. Holder gone the other way, North Carolina lawmakers could have passed the original photo ID bill. But with preclearance no longer a factor, North Carolina was free to pass whatever it wanted. And Republican lawmakers wanted to do much more.
Now, one lawmaker said, they could “go with the full bill,” referring to more extensive omnibus legislation lawmakers had planned on the contingency that they wouldn’t need preclearance.
North Carolina was far from alone. Across the country, states and local jurisdictions that were free from the Justice Department’s watchful eye were taking advantage of their new ability to restrict voting rights in ways that had been impossible for decades. And even in places that hadn’t been under preclearance, the Shelby County ruling sent a clear signal to policymakers about where the Supreme Court stood on voting rights.
The Supreme Court had gutted a pillar of the Voting Rights Act, and the door was wide open.
‘Early warning system’
Section 2 of the Voting Rights Act, which prohibits voting practices or procedures that discriminate based on race, ethnicity, language or other minority status, applies to every state, county, city and other jurisdiction in the United States. For habitual bad actors, there was an extra layer of protection in Section 5 of the law.
Preclearance required states and other jurisdictions with histories of disenfranchising minorities to seek approval from the Department of Justice before implementing any changes to voting or election laws or procedures.
States subject to preclearance
These are the jurisdictions that were previously required to get any legislation that would affect voting cleared before they could become law:
Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.
States where only some individual counties or townships were covered: California (three), Florida (five), Michigan (two), New York (three), North Carolina (40), South Dakota (two)
Under Section 2, anyone could sue over a discriminatory law that made it harder for minorities to vote. But litigation can drag on for years, leaving questionable election laws on the books for multiple election cycles. Section 5 preempted those changes and forced the government to prove that changes didn’t make it harder for minorities to exercise their right to vote.
The Justice Department would look at a number of things when it determined whether to preclear voting changes. Attorneys would investigate the rationale for the changes and analyze their effects on groups like people of color or language minorities. They’d speak with the affected communities to get their input on the effects of a change.
Justin Levitt, a law professor at Loyola Law School who previously worked as a deputy assistant attorney general in the department’s Civil Rights Division, described preclearance as an “early warning system.” One of the system’s biggest features was it forced states and local jurisdictions into a dialogue with the Justice Department about what would or wouldn’t receive approval, and then they could act accordingly, he said.
“It effectively notified decision-makers when a decision was about to take place and required the jurisdictions to compile the data to very specifically tell whether the change in question would have an adverse effect or not,” Levitt said.
If a change reduced minority voting strength or representation, the Justice Department would reject it. The term used for that reduction or dilution of minority voting rights is retrogression.
If the Department of Justice finds a law or other change was made with discriminatory intent, it would deny preclearance. Retrogression alone, even without discriminatory intent, was enough to mark a law for rejection.
Not all voting and election law changes are equal under preclearance, even those that on their faces seem similar. For example, 35 states require some sort of identification to vote — North Carolina is the 36th, but the courts have temporarily enjoined its law — according to the National Conference of State Legislatures, and those laws vary from state to state. In Nevada, if you’ve voted before you don’t need to show an ID to vote but your name must appear on the elections board register and your signature match the one on file.
Arizona voters in 2004, when the state was still under preclearance, approved laws requiring photo ID to cast a ballot and proof of citizenship to register to vote. Both received preclearance, though Arizona is one of nine states whose voter ID law is classified as “strict” by NCSL. The Supreme Court in 2013 ruled that Arizona can’t require proof of citizenship to vote in federal elections, but left the voter ID requirement in place for state and local elections.
Yet voter ID laws in other states have been the source of some of the fiercest post-preclearance litigation in America.
The act of requiring photo ID in itself wasn’t discriminatory under Section 5. Whether such requirements were discriminatory depended on other factors, such as what kinds of identification were acceptable for voting and who was likely to use them.
Gerald Hebert, an attorney who used to work in the voting section of the Justice Department’s Civil Rights Division, pointed to Texas as an example.
Like North Carolina, Texas sprang into action virtually the moment the Supreme Court announced its decision, announcing that a photo ID law that had been blocked by a federal court would now go into effect.
Texas’s law prohibited forms of photo identification that minority voters were disproportionately likely to use, such as student IDs and state employee IDs, Hebert said. But it did allow forms of identification disproportionately used by white people. For example, 91 percent of the people who have licenses to carry firearms in Texas were white. Texas’s law permitted the use of those IDs to vote, even though they were available to noncitizens, undermining GOP lawmakers’ rationale that the photo ID law was intended to prevent undocumented immigrants from voting.
The biggest losers
Most if not all states that were covered by Section 5 have taken advantage of their newfound freedom in the wake of the Shelby County ruling. Voting rights experts say three states — Georgia, North Carolina and Texas — stand out as the worst offenders.
“If there was a TV game show called the Biggest Losers when it comes to voting rights, those three states would win hands-down every time,” Hebert said.
Hebert pointed to North Carolina’s “full bill,” which he fought in court, as one of the most egregious examples.
The bill required photo ID for people to vote. It reduced the state’s early voting period from 17 to 10 days. It repealed laws allowing people to register to vote through election day and allowing teenagers to register if they would turn 18 by election day. And it barred election officials from counting provisional ballots cast in the wrong precinct.
The U.S. 4th Circuit Court of Appeals struck down the law in 2016, ruling that the North Carolina law’s provisions “target African Americans with almost surgical precision.” The findings were no different on the other provisions of the bill. The 4th Circuit noted that the legislature “requested data on the use, by race, of a number of voting practices,” and then used that data to restrict voting rights in five ways that disproportionately affected African Americans.
Hebert said Georgia’s controversial purge of hundreds of thousands of people from the state’s voter rolls in 2017, including more than 100,000 who were removed for not voting in previous elections, likely would not have survived scrutiny from the Justice Department as well.
In 2011, the Arizona legislature approved a law that would have required people who collect and turn in other voters’ early ballots to register with the state. But the Justice Department quickly signalled that a rejection might be in the works, and the state withdrew its application for preclearance rather than risk denial.
Five years later, with preclearance no longer an issue, Arizona banned third-party ballot collection, which critics dub “ballot harvesting,” outright.
State Sen. Martin Quezada, a Democrat from the Phoenix suburb of Glendale, said many voters in his working-class, heavily Latino district miss the deadline to mail in their early ballots and don’t have time to take them to a polling place or voting center because of the demands of their jobs. So campaigns and advocacy groups will go to voters’ homes to collect ballots and turn them in.
After two years of litigation, the U.S. 9th Circuit Court of Appeals struck down the law, in part, as a violation of Section 2 of the Voting Rights Act, finding that the law had a discriminatory effect on Latino and Native American voters, and that it was designed to do so. Arizona’s attorney general, a Republican, appealed the 9th Circuit’s ruling to the Supreme Court, which allowed the law to go into effect before the 2016 election.
In 2013, shortly before the Supreme Court handed down its ruling in Shelby County, then-Virginia Gov. Bob McDonnell, a Republican, signed a GOP-backed photo ID law in 2013. Opponents sued, but a federal appeals court upheld the law in 2016, finding no basis to conclude it was racially discriminatory.
Virginia’s General Assembly, now controlled by Democrats, voted to repeal the photo ID law this year, and Gov. Ralph Northam, also a Democrat, signed the bill.
“Literally every state that was previously covered by the preclearance provisions, every state has enacted laws that made minorities worse off,” Hebert said.
Section 2 has been an effective tool in striking down discriminatory laws. But while preclearance was a quick and pre-emptive process, litigation under Section 2 can be a lengthy process, as well as an expensive one for plaintiffs who must foot the bill for their own lawsuits rather than relying on the Justice Department to take action.
Parts of North Carolina’s initial post-preclearance legislation spent eight years in the courts before ultimately being struck down in 2019. In the meantime, the lawmakers elected under those laws got to spend years making policy.
“That’s justice denied because that is unquestionably justice delayed,” Levitt said.
Under Section 5, the Justice Department had 60 days to determine whether a law or voting change resulted in retrogression. Any law with discriminatory intent or effect would be rejected quickly.
In the post-preclearance world, it takes years. That not only makes it easier for policymakers to restrict minority voting rights; it incentivizes doing it as close to an election as possible so opponents have little time to go to court and get an injunction.
What is Shelby v Holder?
Officials in Shelby County, Alabama, brought a federal lawsuit against the U.S. Justice Department and then-Attorney General Eric Holder in 2010, arguing that Section 4b and Section 5 of the Voting Rights Act were no longer needed. After lower courts ruled against them, the county appealed to the Supreme Court and won in a 5-4 ruling.
Chief Justice John Roberts wrote the majority opinion and said the coverage formula in section 4b used to determine which states were subject to preclearance was outdated, writing “the tests and devices that blocked ballot access have been forbidden nationwide for over 40 years.” He wrote: “Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act.”
Some observers believe the Shelby County ruling has also caused kind of a ripple effect in places that weren’t subject to preclearance. Levitt said major litigation in states like North Carolina and Texas has left fewer resources for voting rights enforcement elsewhere. Hebert and Bruce Adelson, who helped enforce preclearance as an attorney with the Justice Department, said the ruling showed the Supreme Court under Chief Justice John Roberts is hostile to voting rights, and inadvertently encouraged states and jurisdictions, even those that weren’t under preclearance, to act accordingly.
Hebert pointed to a massive voter purge in Ohio that the Supreme Court upheld last year and a 2019 law restricting voter registration activities in Tennessee, which faces a lawsuit that Hebert is part of. He wouldn’t go as far as to say Shelby County convinced the states to take such actions, but said states understand that the Supreme Court is sympathetic and is largely hostile to voting rights. Adelson noted that a recent U.S. 5th Circuit Court of Appeals rejected allegations of a Section 2 violation, citing Roberts’ opinion in Shelby County as its rationale.
“I do think that the decision to strike down the most effective civil rights law in the history of our country, the Voting Rights Act, in particular preclearance, sends an ominous signal throughout the nation that the Roberts court is going to not be a guardian of the voting rights of Americans,” Hebert said.
All politics is local
While statewide legislation and redistricting plans have generated the most high-profile legal battles in post-preclearance America, it’s at the local level, in counties, school board districts and in other special districts, where the effects of Shelby County are often most keenly felt.
“Most of the changes I’ve seen that really made me think, ‘Man, that would’ve been a really difficult submission,’ involve polling places, reductions in polling places, establishment of voting centers, all early voting, voting hours,” Adelson said.
That’s been the case in Georgia, where 214 polling places have closed since 2012. Bryan Sells, an Atlanta lawyer who specializes in voting rights, said polling place closures have been the biggest problem Georgia has faced as a result of the Shelby County ruling. Those closures are made without regard for the effects they’ll have on minority voters, Sells said, and there’s usually no way to know it’s even happening without attending the board of elections meetings where the decisions are made.
“Now those kinds of changes happen in the dark, literally in a meeting room with nobody else there,” Sells said. “It’s the kind of change that’s the greatest risk for making things worse for minority voters, the kind of change that nobody knows about.”
Jorge Vasquez, director of the Power and Democracy Program of the Advancement Project, a multi-ethnic civil rights organization, said there has been a broader loosening of protections for minority voters in Florida, since preclearance ended for five counties there.
“In giving counties discretion, we’ve seen that the discretion has had an inverse impact on the Black and brown voters,” Vasquez said.
Some voting rights experts, such as Adelson and Hebert, attributed the problem directly to the lack of preclearance, which likely would have precluded such a drastic reduction in polling places.
In Nevada, members of the federally recognized Pyramid Lake and Walker River Paiute tribes sued the Secretary of State in 2016 in order to secure polling places and early voting sites on their respective reservations. Tribes can now request polling locations, but the Nevada Statewide Native American Caucus argues the state’s failure to establish satellite offices free of a request has a significant impact on Native Americans voting power, and denies those living on reservations voting rights.
The test to come
The changes that Shelby County has permitted may pale in comparison to the test that’s coming next year — redistricting, which Adelson called the Justice Department’s “red alert” issue when Section 5 was in effect.
For some previously covered states, 2021 will mark the first redistricting since the end of preclearance. And those who are watching closely to see how minority voters will fare under the new congressional and legislative districts are concerned.
“This is uncharted voting territory, in a sense. It’s the first time without Section 5 in a long time,” Adelson said.
Other previously covered states decided not to wait for the decennial redistricting process following the 2020 Census to start redrawing district lines, giving a preview of what may be coming next year.
Georgia’s Republican-controlled Legislature took advantage of preclearance’s demise to engage in some mid-decade redistricting. After two white Republican state legislators in districts with growing minority populations barely won re-election in 2014, their colleagues in the General Assembly performed a mid-cycle redrawing to swap out heavily Black and Latino areas in their suburban Atlanta districts.
“What I’m worried about most is that in order to now invalidate discriminatory redistricting plans, we’re going to have to go to court, and it’s very costly, it’s very time consuming. A lot of groups don’t have the kind of resources necessary to litigate those,” Hebert said.
Levitt said one of the most valuable services that preclearance provided was to push back against incumbents protecting their own districts. Without preclearance, he worries what will happen next year when legislatures in previously covered states redraw their congressional and legislative districts.
“I am very afraid that when all the knives come out at once, we don’t have the tools to make sure that we are amply defended against the exceedingly powerful incumbent incentive,” Levitt said.
And while it can be difficult to challenge a statewide redistricting plan in court, it’s harder to track changes in tens of thousands of local jurisdictions. When it comes to local redistricting plans, where officials can be just as determined to protect their incumbency as any state legislator, Levitt said it’s often difficult to know where to fight.
Gone, but not forgotten
Not every previously covered jurisdiction has used the absence of preclearance to tamp down on minority voting rights. Some have gone in the other direction.
Two townships in Michigan with large numbers of Spanish-speaking residents had been covered by preclearance. But Michigan has seen an expansion, rather than a contraction, in voting rights since the Shelby County decision. In 2018, voters approved an amendment to Michigan’s constitution that enacted automatic voter registration when people renew their driver’s licenses, allows same-day voter registration up through election days, permits absentee voting without a reason, and reinstated straight-ticket voting that Republican lawmakers had eliminated.
Nevada is working to enshrine voter rights into its state constitution via a ballot question. If approved by voters during the 2020 general election, the constitutional change will guarantee equal access to elections without discrimination, intimidation or coercion, as well as the right to vote during early voting or on Election Day. It also guarantees voters can have their ballots recorded accurately based on a uniform, statewide standard, among other rights.
The newly minted Democratic majority in Virginia’s General Assembly is contemplating a state-level preclearance requirement. A bill introduced in the 2020 legislative session would have required certain cities and counties to convince the courts or Virginia’s attorney general that local election changes wouldn’t have a racially disparate impact. The proposal passed both legislative chambers, but failed late in the session as lawmakers tried to work out minor differences.
The bill’s main patron, Del. Schuyler VanValkenburg, D-Henrico, said he intends to bring it back in 2021, saying it’s important for localities to think about racial impacts even if there’s no discriminatory intent.
“We want them to have to take these things into consideration,” VanValkenburg said. “Because when they don’t, we see that minority voters are often the first ones disenfranchised.”
Some voting rights experts are hopeful that federal preclearance can make a comeback as well.
Technically, the Supreme Court only struck down the formula used to determine which jurisdictions needed preclearance. It was Section 4, which contained that formula, not Section 5, which mandated preclearance for bad actors, that the high court found to be unconstitutional.
That means Congress can re-authorize preclearance under a new formula — or at least it can if the House of Representatives, Senate and White House all agree.
Thus far, that has been far from a reality. In previous years, Republicans were overwhelmingly supportive of the Voting Rights Act. The most recent reauthorization of the Voting Rights Act occurred in 2006, with most House Republicans voting for renewal and the Senate approving it unanimously.
More recently, however, the GOP has been hostile to the idea of reconstituting the preclearance requirement. Republicans controlled the House of Representatives at the time of Shelby County, and have since taken the Senate and White House, though the House is back in Democratic hands as of 2019.
The House in December passed legislation that would restore preclearance and update the criteria used to determine which jurisdictions need Justice Department approval. After longtime Georgia congressman and civil rights icon John Lewis died in July, House Democrats moved to rename the John R. Lewis Voting Rights Act of 2020. Lewis and other civil rights marchers were brutally beaten by state troopers on the Edmund Pettus Bridge in Selma, Ala., during a 1965 march for the original Voting Rights Act, and Democrats are pushing to pass the bill, which has little support from Republicans, in his honor.
Hebert is hopeful that, if former Vice President Joe Biden defeats President Donald Trump in November and the Democrats take control of the Senate, preclearance will once again become a reality next year.
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