Five years later, Shelby v. Holder casts long shadow over voting rights in America

By Leigh Chapman, Senior Policy Advisor for Let America Vote

We’re recognizing an unhappy anniversary this week, as Monday marked five years since the U.S. Supreme Court gutted the centerpiece of the Voting Rights Act and opened the floodgates for a surge of anti-democratic laws and policies nationwide.

The case was Shelby County v. Holder, and at issue was the constitutionality of the preclearance provisions of the Voting Rights Act — one of the signature policy accomplishments of the Civil Rights Movement.

Section 5 of that historic law requires certain jurisdictions with a history of voting-rights discrimination to obtain federal approval — or “preclearance” — before implementing changes to voting laws. Section 4(b) determines which jurisdictions — based on a history of discrimination in voting — are subject to that approval.

In short, it was under Section 5, and because of Section 4(b), that states with long, ugly histories of voter suppression like Texas, Louisiana, Mississippi, and Alabama had to win federal approval before rewriting their voting laws.

But in a 5-4 ruling, the Supreme Court invalidated all that. The court’s conservative majority declared Section 4(b) unconstitutional because its formula for deciding jurisdictions subject to preclearance relied on data from more than 40 years ago. That, they alleged, made it unresponsive to current needs and a burden on states. Although the Court did not strike down Section 5, the ruling on Section 4(b) means that no jurisdiction is subject to preclearance unless and until Congress enacts another coverage formula.

Within hours of the decision, Texas began enforcing a restrictive voter ID law and lawmakers in North Carolina passed legislation that curbed early-voting hours, eliminated same-day voter registration and introduced a new voter-ID requirement.

In the five short years since Shelby, Republicans across the country have shamelessly instituted policies to suppress the vote — especially for communities of color, low-income persons and youth.

The examples are numerous:

• Barriers to Voter Registration

Some states require voters to provide documentation proving their intention to be domiciled for the foreseeable future in the state where they’re registered — even though that’s not required in order to vote. New Hampshire, for example, recently passed SB 3, requiring voters to provide additional proof of residence within 10 days of registering.

New Hampshire Republicans have also passed HB 372 and HB 1264, which make the legal definitions of “residence, inhabitant and domicile” the same for voting purposes — a semantic change with a big effect. The legislation, in effect, requires people to either obtain a New Hampshire state ID or register their car within 90 days of moving to the state. For college students who come to the state to pursue a higher education, that demand amounts to little more than a poll tax.

• Voter Identification Laws

ID laws requiring voters to present specific photo identification when they vote either in person or via absentee ballot have proliferated since the Shelby decision. Permissible IDs can include federal documents like a U.S. passport or state-issued driver’s license and non-driver IDs, but vary widely by state and often are extremely limited. According to the National Conference of State Legislatures, at least 34 states require voters to show some form of ID to vote.

These voter ID laws create a significant barrier to the ballot box for the 21 million Americans who do not have the required ID, and disproportionately affect minority communities, low-income adults and young people. In North Carolina, a court threw out one version of a voter-ID law for targeting “African Americans with almost surgical precision.” (Undeterred, North Carolina Republicans are now trying to write an ID requirement into the state constitution.)

• Polling Place Closures and Consolidations

There are many methods of voting. Some voters choose to vote early while others prefer to vote on Election Day at their designated polling place. Since the Shelby decision in 2013, we’ve seen local election officials move to close or consolidate polling places around the country, often with clear partisan implications. In Georgia, for example, the Board of Elections in Hancock County proposed closing nine of its 10 voting precincts, creating an unfair travel burden for voters in the county’s majority-black precincts. Fewer polling places often results in longer distances for voters to travel, longer lines and voter confusion—all of which results in fewer people voting. When these closures occur in jurisdictions with a history of voting discrimination, people of color can be disproportionately impacted.

• Purges

One way to make it harder for people to vote is to remove them from the voter rolls altogether  —  and this happens much more often than you might think. These so-called “purges” are often done in the name of keeping voter rolls “up to date,” but can, in fact, be ordered by elected officials to kick certain voters off the rolls. Georgia and Ohio have recently removed thousands of voters from the rolls for simply not voting, a practice recently upheld in a 5-4 decision by the U.S. Supreme Court.

Some jurisdictions have removed voters from the rolls using inaccurate measures and databases. In one egregious example, the city of Thunderbolt, Georgia, tried to remove voters from the rolls if their name did not appear on the city’s water bills.

• Limits on Early Voting

Early voting has many forms, including in-person early voting and absentee voting by mail. According to a recent study by the United States Election Assistance Commission, the “total number of voters who voted early, absentee or by mail more than doubled from 24.9 million in 2004 to 57.2 million in 2016.” A study by the Brennan Center found numerous benefits to early voting, including reduced stress on the voting system; shorter lines on Election Day; improved poll worker performance; early identification and correction of registration errors and voting-system glitches; and greater access to voting and increased voter satisfaction.

Still, many states have moved to limit, rather than expand, early voting.  In Georgia, for example, Republicans introduced legislation in 2018 eliminating Sunday voting and cutting polling hours for the city of Atlanta, a blatant attempt to suppress the state’s African-American vote.

Let America Vote rallied supporters against these measures by sending text messages and e-mails to supporters in Georgia asking them to voice their opposition to their state legislators. Celebrities and national advocates amplified our message, drawing national attention to the fight. Because of our advocacy in conjunction with the efforts of several Georgia-based organizations, the legislation died in committee.

Advocacy groups have fought back against these restrictive laws with legal challenges. Democrats in Congress, meanwhile, have drafted a Voting Rights Amendment Act, which as yet has garnered no Republican support or even received a hearing.

Five years after Shelby County, voting rights and access to the ballot are worse, not better than they were before. Politicians are emboldened to manipulate the system to their advantage. And under the Trump administration, the federal government has switched sides in many key cases, standing with vote suppressors and against eligible voters.

In light of all this, the time has come to create political consequences for politicians who suppress the vote. The time has come to take the voting rights fight beyond the court of law and into the court of public opinion. That is Let America Vote’s mission.  

We’re putting in the work to throw vote-suppressing politicians out of office and replace them with voting-rights champions. And we’re advocating for policies that increase access to the ballot box — policies like automatic voter registration, online voter registration, and same-day voter registration.

On this anniversary of Shelby County v. Holder, we’re more determined than ever to keep up the fight and we’d love to have your help. Text VOTE to 44939 to help us fight voter suppression bills in your state and support bills and policies that will make our elections freer, fairer, and more accessible.