Shelby County v. Holder, the Voting Rights Act, and Voter ID Laws

The United States has a long history of discrimination and disenfranchisement on the basis of race. The country’s first step towards rectifying this issue came in 1869[1], with the passage of the Fifteenth Amendment, which ensures the right of all “citizens of the United States to vote,” regardless of “race, color, or previous condition of servitude”[2]. However, even after the Fifteenth Amendment was passed, “poll taxes, literacy tests, grandfather clauses, white-only primaries, and other measures” targeted and disenfranchised African-American and other minority voters[3]. These “measures” were seen as perfectly legal and were even upheld by the Supreme Court[4]. It was not until the 1960s under President Lyndon B. Johnson that the Twenty-Fourth Amendment, which forbade poll taxes as a voting requirement “for federal offices,” was passed[5]. The Voting Rights Act of 1965 (VRA), passed a year later, sought to ensure that the Fifteenth Amendment’s guarantee of the right to vote for all Americans was properly enforced.

In this article, I will argue that the Supreme Court’s decision in the 2013 case of Shelby County v. Holder, which eliminated key provisions of the VRA, had the unintended effect of making it easier for states to pass discriminatory voter ID laws that have been found to discriminate on the basis of race. While these discriminatory laws can still be challenged under Section 2 of the VRA, the decision of the Court to strike down Section 4 (and, implicitly, Section 5) makes it possible for states to pass such laws in the first place.

Section 2 of the VRA holds: “No voting qualifications or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color”[6]. States cannot mandate unfair or unreasonable voting regulations that prevent or make it more difficult for minorities to vote[7]. Since most election laws are passed at the state and local level, the VRA targets specific areas that have historically infringed on minorities’ right to vote. Section 4 of the VRA defines “covered jurisdictions” as places that had “tests or devices as prerequisites to voting, and had low voter registration […] in the 1960s and early 1970s”[8]. Section 5 states that these “covered jurisdictions” must get “preclearance” (special approval from “federal authorities in Washington, D.C.”) when passing new voting laws and regulations[9]. “Covered jurisdictions” in 2013 included the states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, and counties and towns in states across the country[10]. These jurisdictions no longer have to undergo pre clearance if they can demonstrate that they have “not violated the VRA” for the previous “ten years”[11].

A 2013 Supreme Court case, Shelby County v. Holder, narrowly held that “Section 4 of the Voting Rights Act [of 1965] is unconstitutional”[12]. More specifically, the Court reasoned that Section 4 of the VRA no longer meets “current needs”[13] and violates the Tenth Amendment protection of states’ rights[14]. The Court clarified that “[their] decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2” and urged Congress to pass new, more relevant legislation[15]. While the Court did not rule Section 5, regarding preclearance, unconstitutional, Justice Ginsburg argued in her dissent that by striking down Section 4, the Court rendered Section 5—which plays a significant role in enforcing the ban on racial discrimination in voting—essentially “immobilized”[16].

The Court’s decision in Shelby County v. Holder was in effect for the first time during a presidential election in 2016[17], but has had consequences in local elections since 2013[18]. Numerous suits have been filed against states previously protected under Sections 4 and 5 of the VRA, including Arizona, Alabama, Georgia, Texas, and Virginia[19]. Many of these states implemented strict voter ID laws that had previously been blocked by Sections 4 and 5 of the VRA[20].

The Texas legislature passed Senate Bill 14 (SB 14) in 2011, before the ruling of Shelby County v. Holder. It requires voters to meet very strict photo ID requirements in order to be able to vote[21]. The Brennan Center for Justice at NYU Law found that SB 14 disproportionately affected poor minorities who were unable to obtain the necessary ID to vote[22]. Texas v. Holder, a 2012 D.C. District Court case, held that Texas failed to demonstrate that SB 14 “[would not] lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise” under Section 5 of the VRA[23]. The District Court did not give Texas preclearance for SB 14[24]. However, thanks to the decision in Shelby County v. Holder, Texas was able to pass the law in 2013[25].

The Texas chapter of the National Association for the Advancement of Colored People (NAACP) sued the state of Texas over SB 14, under the claim that it is the “strictest-in-the-nation voter ID law”[26]. According to SB 14, Texans can choose from only seven approved IDs that they must present in order to vote[27]. The plaintiffs in Veasey v. Perry, the ensuing case, argued that SB 14 violates Section 2 of the VRA, “[discriminates] against minority voters,” and “imposes an unconstitutional burden on the right to vote”[28]. A Texas District Court in Veasey v. Perry agreed that “SB 14 violates Section 2 of the VRA and the United States Constitution,” and “[barred] Texas’s enforcement of [SB 14’s] requirements”[29]. Since then, several courts, including the Fifth Circuit, have agreed “that Texas legislators enacted SB 14 with the intent to discriminate against minority voters” and that SB 14 is in fact racially discriminatory[30]. In June 2017, Texas passed a new voter ID law, Senate Bill 5 (SB 5), which groups such as the Brennan Center for Justice at NYU Law claim “perpetuated [the] effects [of SB 14]”[31]. There is an ongoing legal battle over SB 5[32].

While there have been many new, beneficial voting laws passed since Shelby County v. Holder’s ruling—such as “online voter registration” and other legislation—the majority of them do not seem to be a direct result of the Supreme Court’s ruling in 2013[33]. Many states, like Texas, have passed laws that are racially discriminatory and which would have been blocked by the VRA prior to 2013[34].

Elections are regulated by local governments, but rulings such as Shelby County v. Holder, which occur on a federal level, affect all U.S. elections. Shelby County v. Holder has made it easier for states with a history of racial discrimination to pass legislation which makes it more difficult for minorities to vote and has made possible the recent increase in racially discriminatory voter ID legislation. The ruling in Shelby County v. Holder relies on Congress to pass legislation that would protect the right to vote for people of all races, but unfortunately, this has not been the reality. While the ruling left Section 2 of the VRA intact, Section 4 (and implicitly Section 5), which was struck down, would have prevented passage of these discriminatory laws in the first place[35].

Since the Shelby County decision, numerous states have expanded voter ID requirements and other voting restrictions. With the exceptions of Rhode Island and Arizona, all of the states with new requirements for the 2016 election were located in the Midwest or the South[36]. The Brennan Center for Justice at NYU found that “voter ID bills are still the most common form of voting restriction moving in state legislatures”[37]. By March 2017 alone, at least seven restrictive voter ID laws were passed in Arkansas, Georgia, Indiana, Iowa, Montana, and North Dakota[38]. The introduction of bills “to restrict voting access” has become an increasing trend, with bills being introduced in states such as California and New York as well as other states across the country[39]. The Brennan Center for Justice has found that “fifteen state legislatures have passed bills to expand access to voting, but Governors have vetoed the most impactful legislation”[40]. Although a few states, such as Idaho, have made their voter ID laws less restrictive, the majority of states have not[41]. And while many states, including Texas and other states that are known to have burdensome voting requirements—have introduced bills that would make voter registration automatic[42], this does not negate the fact that these states are also introducing and enacting legislation, such as SB 14 and SB 5, which make it increasingly difficult for minorities to actually cast a ballot.

While Shelby County v. Holder had good intentions and encouraged Congress to pass newer, more relevant legislation, it has allowed laws to pass which are found to be discriminatory in court. This trend of restrictive voting laws which disproportionately affect racial minorities is one that needs to stop.

[1] Library of Congress, 15th Amendment to the U.S. Constitution, Library of Congress Web Guides (2017), online at http://loc.gov/rr/program/bib/ourdocs/15thamendment.html (visited November 30, 2017).

[2] US Const. amend. XV

[3] Editors of the Encyclopedia Britannica, Voting Rights Act, Encyclopedia Britannica (2016), online at https://www.britannica.com/event/Voting-Rights-Act (visited November 30, 2017).

[4] id.

[5] id.

[6] Voting Rights Act of 1965, U.S. House of Representatives (1965), online at http://library.clerk.house.gov/reference-files/PPL_VotingRightsAct_1965.pdf (visited November 30, 2017).

[7] Legal Information Institute, Voting Rights Act, Legal Information Institute, online at https://www.law.cornell.edu/wex/voting_rights_act (visited November 30, 2017).

[8] Shelby County v. Holder, 570 U.S. __ (2013)

[9] Ibid at 1.

[10] John Gore, Jurisdictions Previously Covered by Section 5, The United States Department of Justice (2015), online at https://www.justice.gov/crt/jurisdictions-previously-covered-section-5 (visited November 30, 2017).

[11] Legal Information Institute, Voting Rights Act, Legal Information Institute, online at https://www.law.cornell.edu/wex/voting_rights_act (visited November 30, 2017).

[12] Shelby County v. Holder, Oyez, online at https://www.oyez.org/cases/2012/12-96 (visited November 30, 2017).

[13] Shelby County v. Holder, 570 U.S. __ (2013)

[14] John Schwartz, Between the Lines of the Voting Rights Act Opinion, The New York Times (2013), online at http://www.nytimes.com/interactive/2013/06/25/us/annotated-supreme-court-decision-on-voting-rights-act.html (visited November 30, 2017).

[15] id.

[16] Shelby County v. Holder, 570 U.S. __ (2013)

[17] Ari Berman, Welcome to the First Presidential Election Since Voting Rights Act Gutted, Rolling Stone (2016), online at http://www.rollingstone.com/politics/news/welcome-to-the-first-presidential-election-since-voting-rights-act-gutted-20160623 (visited November 30, 2017).

[18] Major Litigation That Could Impact Voting Access, Brennan Center for Justice (2017), online at https://www.brennancenter.org/major-litigation-could-impact-voting-access (visited November 30, 2017).

[19] id.

[20] Tomas Lopez, ‘Shelby County’: One Year Later, Brennan Center for Justice (2014), online at http://www.brennancenter.org/analysis/shelby-county-one-year-later (visited November 30, 2017).

[21] id.

[22] id.

[23] Texas v. Holder, 888 F. Supp. 2nd 113 (D.D.C. 2012)

[24] New Voting Restrictions in America, Brennan Center for Justice (2017), online at https://www.brennancenter.org/new-voting-restrictions-america (visited November 30, 2017).

[25] Tomas Lopez, ‘Shelby County’: One Year Later, Brennan Center for Justice (2014), online at http://www.brennancenter.org/analysis/shelby-county-one-year-later (visited November 30, 2017).

[26] Texas NAACP v. Steen (consolidated with Veasey v. Abbott), Brennan Center for Justice (2017), online at http://www.brennancenter.org/legal-work/naacp-v-steen (visited November 30, 2017).

[27] id.

[28] id.

[29] Veasey v. Perry, No. 14-41127 (5th Cir. Oct. 14, 2014)

[30] Texas NAACP v. Steen (consolidated with Veasey v. Abbott), Brennan Center for Justice (2017), online at http://www.brennancenter.org/legal-work/naacp-v-steen (visited November 30, 2017).

[31] id.

[32] id.

[33] Jaime Fuller, How has voting changed since Shelby County v. Holder?, Washington Post (2014), online at https://www.washingtonpost.com/news/the-fix/wp/2014/07/07/how-has-voting-changed-since-shelby-county-v-holder/?utm_term=.fb1295737155 (visited November 30, 2017).

[34] Major Litigation That Could Impact Voting Access, Brennan Center for Justice (2017), online at https://www.brennancenter.org/major-litigation-could-impact-voting-access (visited November 30, 2017).

[35] John Schwartz, Between the Lines of the Voting Rights Act Opinion, The New York Times (2013), online at http://www.nytimes.com/interactive/2013/06/25/us/annotated-supreme-court-decision-on-voting-rights-act.html (visited November 30, 2017).

[36] New Voting Restrictions in America, Brennan Center for Justice (2017), online at https://www.brennancenter.org/new-voting-restrictions-america (visited November 30, 2017).

[37] Voting Laws Roundup 2017, Brennan Center for Justice (2017), online at https://www.brennancenter.org/analysis/voting-laws-roundup-2017 (visited November 30, 2017).

[38] id.

[39] id.

[40] id.

[41] id.

[42] id.