How A 2013 Supreme Court Decision Enabled Racially Discriminatory Mass Voter Suppression Across The U.S. And What We Can Do About It
The restrictive voting laws sweeping through various states across the country have gripped the media’s attention as of late, but they are no new trend. The media is excitedly peddling the narrative that former President Donald Trump’s incendiary 2020 election fraud claims are to blame for the recent spike in proposed legislation that aims to restrict access to voting .While the two are likely correlated, it is important to recognize that none of these changes in state electoral processes could be made on the whim of unsubstantiated election fraud claims without a systemic mechanism allowing them to do so. The systemic mechanism that enabled the rapid crackdown on voter participation across the U.S., is the Supreme Court decision made in 2013 on a case called Shelby County v Holder. This decision did not only technically allow certain states to change electoral processes without any federal oversight, but it also empirically enabled racially discriminatory voter suppression across the U.S. and significantly disenfranchised many minority voters. While it may be sexier to blame public figures for the crimes against democracy that have been introduced over the last decade, it is more important to look at the true and perhaps more boring culprits of voter suppression so we can best cure the ills they have caused. Banning Trump from social media for pushing false fraudulent election claims is a more exciting solution to voter suppression than the John Lewis Voting Rights Act, which is a proposed solution that will be discussed in this article, but it will not cure the deeper ill that allowed these restrictive changes to occur in the first place.
Shelby County v Holder
Firstly, we must understand what Shelby County v Holder is before we can understand its impacts. In 2013, The Supreme Court of the U.S. heard a case from an Alabama county called Shelby County. The county was seeking judgement on the constitutionality of Section 5 and 4b of the Voting Rights Act of 1965. The Voting Rights Act of 1965 was a law that mandated counties in 13 different states with prior histories of racially discriminatory voting procedures to obtain federal preclearance before altering any election protocols. In layman’s terms, this effectively meant that counties which were deemed racist in the way they administer political elections needed to get federal approval to effect any kind of changes to their electoral procedures to ensure that they were non-discriminatory. Section 5 of the act prohibits the relevant districts from changing voting laws without federal approval while Section 4b outlines which districts are to be mandated to receive this kind of federal preclearance. The court ruled in favour of Shelby County, claiming that the act was unconstitutional largely due to section 4b which “ re-enacted a formula based on 40-year-old facts having no logical relation to the present day”. Without any districts to impose the Voting Rights Act (VRA) onto, Shelby v Holder made the act unenforceable, thereby allowing for states once covered by the VRA to freely change their voting procedures without any federal approval.
What Has Happened In The States Once Covered By The Voting Rights Act Since Shelby County v Holder
Much has happened since this landmark Supreme Court decision and most of it is not good for securing equal voting rights for all. The general finding has been that the Voting Rights Act (which was effectively struck down by Shelby County v Holder) increased long-run voter turnout by 4–8 percentage points and specifically increased minority voter turnout by as much as 30% (https://www.hks.harvard.edu/publications/do-40-year-old-facts-still-matter-long-run-effects-federal-oversight-under-voting). While the data collected in the 2020 presidential election is still being analyzed, significant insights on the impact of Shelby v Holder can be gained by reviewing the research conducted on the 2016 presidential election. As is evidenced by the graph below, minority voter turnout in presidential elections took a sharp dive after the Shelby County v Holder decision.
Another 2018 study found that Voting Rights Act coverage increased Black voter registration in North Carolina (by 14–19 percentage points). The existing research on the impact of the Voting Rights Act and the Shelby v Holder decision on voter turnout seems pretty clear: it was specifically bad for voter turnout among racial minorities. That being said, there are still big names in politics, like current Senate Minority leader Mitch Mcconnell, who vehemently deny that any such kind of rampant voter suppression is going on in America. Thus, going through a specific breakdown of how racially discriminatory voter suppression is happening in real-time (and what we can do about it) is a worthy contribution to public discourse at this time. Among many new voting restrictions, we will focus on how the districts that were once covered by the Voting Rights Act have seen significantly more voter purgers, polling site closures and generally restrictive voting laws since 2013.
A voter purge is any massive deletion of names from voter registration lists. Oftentimes, voters who get purged from registration lists never end up turning out to vote in the relevant election cycle. For instance, one Georgetown study found that there was a significant negative relationship between voter purges and voter turnout in the 2018 Georgia midterm elections. On the aggregate, what has been found in terms of voter purges is that states which were once subject to federal preclearance under the Voting Rights Act purged voters in elections at much higher rates than states that were never covered by the act in the first place. Specifically, there were increases between 1.5–4.5% in voter purge rates coming from formerly covered jurisdictions post-Shelby, compared with counties that had not been subject to preclearance ever. If the once-covered states had purged at the same rates as the others, 2 million more voters across the country would be registered to vote. This massive purge was only able to occur after Shelby v Holder in 2013. In total, previously VRA-covered jurisdictions ended up removing more than 9 million voters between the presidential elections of 2012 (pre-Shelby) and 2016 (Post-Shelby).
Breakdown of Voter Purges
While it is regrettable that any amount of eligible voters get purged from voting registration lists, it has been found that the voter purges being enacted by states once covered by the VRA disproportionately effect minority voters. For instance, between 2013–2016, Georgia, a state once covered by the VRA, purged 35 000 registered voters for “discrepancies in voter registration forms”, including discrepancies like the absence of a hyphen or apostrophe. Within this specific voter purge, Africian American citizens were 8 times more likely to be purged from state voter registration lists than white citizens, while Latino citizens were 6 times as likely as their white counterparts. This is not an isolated trend specific to Georgia. For instance, in North Carolina (also once covered by the VRA), three counties were accused of purging roughly 4000 voters too close to election day. In Beaufort county, one of the counties involved, African Americans made up 65% of those targeted by the purge though they accounted for less than 26% of their population.
It is important to recognize that the voter purges mentioned would have been subject to federal approval before Shelby County v Holder. Given the research presented on the racial minorities being targeted by these purges, it is unlikely that these voter purges would have been allowed while the VRA, which sought to protect against racial discrimination in voting, was still enforceable. This speculation is further supported by the fact that voters were being purged at much higher rates in previously VRA-covered districts than others, suggesting that these purges were not feasible during the VRA era but were made possible after Shelby County v Holder. These specific examples of Georgia and North Carolina shows a form of racially discriminatory voter suppression, voter purges, that was enabled by the Shelby County v Holder decision in real-time.
Polling site closures
A whopping 1688 voting sites have been closed in the 13 states once covered by the VRA between the 2013 Shelby v Holder decision and 2019. This is problematic because study after study show how changes to election day voting sites frequently lead to decreased voter turnout in the corresponding precincts. In one study looking at the 2018 midterm elections in North Carolina (a state previously covered by the VRA), it was found that changing a voter’s polling place location leads to a decline in general election turnout likelihood. It makes sense that the consolidation of polling places would lead to decreased turnout. These closures add costs to voters in the form of increased waiting times at voting places (since voters become more condensed when there are less places to vote) and the cost of figuring out where to vote once a voter’s usual polling place closes. That being said, these closures are disproportionately affecting minority voters and they are happening in districts that were once covered by the VRA.
Demographics in Places with High Polling Site Closures
According to the Voting Rights Lab “Jurisdictions previously covered by the VRA have closed 20% more polling locations than other jurisdictions and have 10% more voters assigned to polling places on average.”. This effectively means that polling places were closing at higher rates in VRA states despite the fact that they have more voters. Among the VRA states already closing voting sites at higher rates than others, the state that had the highest percentages of polling place closures was Georgia and the state that had the most widespread reduction in polling places was Arizona. At the time that this data was collected, Georgia had an African American population of 31% . The national average in percentage of African Americans at the time was 14% . This demonstrates that Georgia is densely populated with African American people with almost double the national average percentage-wise. Similarly, at the time that the voting place closures were recorded, Arizona’s total population was 30% Latino, almost double the national average at the time of 18%.
So, polling place closures have a tendency to decrease voter turnout and polling place closures are happening increasingly in places with high percentages of racial minorities. If that does not smell like voter suppression targeting racial minorities then I am not sure what does. Further, pre-Shelby County v Holder, these states would have needed to obtain federal preclearance to close any voting sites to ensure that these closures did not racially discriminate in the very way that I propose is happening in these states. Once this mandate was waived, Georgia and Arizona closed polling sites at unprecedented rates. These facts together illustrate the need for federal preclearance in protecting against racially discriminatory voter suppression.
Restrictive Voting Bills
A slew of restrictive voting bills that toughen up on Voter ID requirements, curtail early voting, allow for massive voter purges and narrow the regulations around absentee voting among many other things have sweeped the nation, with 361 restrictive voting bills being passed in over 43 states since the 2020 presidential election. It is well-understood that strict voter ID laws disproportionately impact racial-minority voter turnout negatively and it has been shown earlier on how voter purges are used as tools to disenfranchise minorities as well. The states that have seen the largest number of restrictive bills introduced since the 2020 presidential elections are Texas (49 bills), Georgia (25 bills), and Arizona (23 bills) . These are all states that would have needed to obtain federal preclearance in order to pass any single one of these voting bills pre-Shelby County v Holder. While there does need to be more comprehensive research conducted on the effects of these bills on VRA states and their voter populations, it is unlikely that they all deviate significantly from the well-documented trend of minority disenfranchisement that voter ID laws and voter purges have on voters. Interesting anecdotes that illustrate the probable intention these states have to discriminate against minority voters can be found in Texas and North Carolina.
In Texas in 2012, a restrictive voting law called SB14 was rejected by a U.S. district court on the grounds that Texas could not prove that the law did not discriminate against African American or Latinno voters. Less than 24 hours after the Shelby County v Holder decision, the Texas Attorney General said that law would take effect immediately.
Similarly, less than 2 months after the Shelby County v Holder decision, North Carolina passed a significantly restrictive voting bill called HB589 that got struck down by U.S. courts in 2016 for “targeting African Americans with almost surgical precision”.
This sharp increase in voting restrictions in VRA states illustrates a concept colloquially captured by the saying “When the cat’s away, the mice come out to play.”. There is still undoubtedly more comprehensive research to be done on the effects of the rise in restrictive voting bills in VRA states. Nonetheless, the fact that places like North Carolina and Texas almost immediately tried to get away with using restrictive voting bills to intentionally disenfranchise minority voters less than 2 months after their mandate for federal preclearance was waived tangibly shows how federal preclearance was used (and can continue to be used) to protect against voter suppression targeting racial minorities.
Why Should You Care?
Insomuch as minorities are being systematically pushed away from the polls, politicians will have little personal incentives to cater to these communities. The mechanism for ensuring proper representation in a democratic nation such as the United States has long been the power to vote. When communities can leverage their votes over the heads of politicians, legislators are forced to deal with the needs of these communities in their pursuits of re-election. When communities are systematically excluded from voting, the mechanism to ensure their representation in lawmaking vanishes. There are studies to support the claim that lawmakers increasingly represent communities in legislation when those communities have a more protected right to vote. For instance, a study published in 2017 found that legislators who represented jurisdictions that were subject to the Voting Rights Act mandate of preclearance were substantially more supportive of civil rights related legislation than members of congress who did not represent covered districts. They also found that these politicians were even more supportive of this kind of civil rights related legislation as the proportion of Black voters in their electorate increased.
While it is fun to blame cultural shifts towards the right and specific politicians such as the likes of Donald Trump for the continued systemic oppression of racial minorities, a country as proud of their constitution and set of inalienable rights as the U.S. ought to be robust enough to withstand a few loud and potentially racist voices. Boiled down to its core, the reason minorities are so vulnerable within the system is less the fault of specific individuals or changes in cultural tides, but rather the weak legal protections this country enstates over racial minorities’ right to vote no matter the cultural climate.
Looking to Georgia and North Carolina specifically, since these states have been shown to egregiously suppress minority votes as a result of the Shelby v Holder decision, these states are rife with racial issues. From the recent murder of unarmed black man Ahmaud Arbery by the hands of Georgia police forces, to the unequal sentencing for African Americans and Latinos with drug charges in North Carolina (compared to their white counterparts), there is still a long road ahead to racial justice in these VRA states. Fixing these pressing issues demands legislative representation. Police reform aimed at protecting African Americans cannot happen without ensuring that Black citizens maintain their right to vote in equal proportions as their white counterparts. The unequal sentencing for drug offences between African Americans, Latinos and their white counterparts will not be formally addressed unless legislators are accountable to these communities by way of voting. These legislators will not be held accountable if these communities are kept away from the polls in pernicious ways like heightened voter ID laws, voter purges or polling place closures. The point is, these huge issues start with restrictive voting legislation and boring court cases like Shelby County v Holder. If we want to secure a better future for minority groups, we need to secure their voices at the polls and that starts by bringing back a mandate for federal preclearance on state voting laws for states that are shown to racially discriminate.
What Can We Do?
Pass The John Lewis Voting Rights Act
The obvious solution to all of these issues is to bring back the mandate of federal preclearance for states with track records of racial discrimination wishing to change their election laws. The John Lewis Voting Rights Act is designed to fight racially discriminatory voter suppression in this very way. Among other things, it brings back the need for certain states to get federal preclearance before changing any election/voting laws. Unlike the original Voting Rights Act, the John Lewis VRA does not outline a list of states that will be subject to the federal approval requirement. Instead, it outlines that any state with 15 or more voting rights violations in the last 25 years to be subject to federal preclearance. Moreover, it clarifies that voting laws which have disproportionately negative effects on minority voters count as voting rights violations, whether or not an intent to discriminate can be proven.
Federal preclearance would force states to prove that their election laws are non-discriminatory before enacting them as opposed to retroactively striking them down once swaths of minority voters have already been disenfranchised from the democratic process. This would restore the voice of racial minorities at the polls and force politicians to consider their struggles in a legislative framework.
This is a feasible solution because it deals with a primary legal issue that Justice Roberts outlined in the original Shelby County v Holder. He claimed that it was unconstitutional to hold states accountable for actions that are so old they are no longer relevant. Now, a state can get a clean slate after 25 years and prove their improvement in terms of minority voter enfranchisement.
Ultimately, this research essay should show that racial voter suppression is happening in various forms in states that seem to be repeat offenders (and were also once covered by the VRA). The mandate of federal preclearance for the most egregious offenders outlined in the John Lewis VRA would provide some kind of a mechanism to protect minority voters in these regions from having their political voices stolen.
Some of the main hurdles in passing this kind of legislation continue to be misinformation peddled by opponents of expansive voting laws, like Mitch Mcconnel. Thus, essays like these and further comprehensive political research on the effects of Shelby County v Holder will be needed to convince the right people that this kind of voter suppression is in fact happening and that it is worth paying attention to despite the perceived tedium of state-level voting laws. For those who wish to stay informed on this topic, in-depth research on the effect of Shelby County v Holder is currently being conducted at The University of Southern California’s Schwarzenegger Institute, as well as New York University’s Brennan Center.