Part 1: Gutting the Voting Rights Act: How the Supreme Court’s Shelby v. Holder decision Strikes at the Heart of Voting Rights and Our Political Process

July 14, 2013

Editor’s Note: There’s nothing more fundamental to our democracy than protecting the rights of every voter. At Wellstone Action, we work with organizations who are dedicated to protecting and expanding voting rights for every American. This is work that is going to be a growing focus of ours in 2014 and beyond. Along with partnering with civic organizations across the country to strengthen our democracy and fight back against anti-democracy policies, we are proud to have an incredible group of trainers working as part of this fight. Emma Greenman is a lawyer, advocate, and part of our trainer corps. Emma did a deep dive for us, looking that the consequences of the recent Supreme Court decision on the voting rights act. It’s an important subject, so important that we broke this piece into two posts; here's the first. We hope you learn something from her expertise.

The Supreme Court’s decision in Shelby v. Holder struck down Section 4 of the Voting Rights Act (VRA) and severely constrained Congress’s ability to protect the fair and equal vote of all American citizens.  For those of you working tirelessly to expand participation in elections, to give citizens power to choose their political leaders, and to expand the promise of democracy to all Americans—the Court’s decision cuts at the heart of those efforts.  

The purpose of this piece is to give a sense of what happened, why it matters and what we can do about it.  Part I describes the Supreme Court’s Shelby holding and what it means for the VRA, for Section 5 pre-clearance and for the right to vote.  Part II details how the Shelby Majority overreached, breaking with history and usurping Congress’s power to protect the right to vote.  After analyzing Shelby’s impact on voting rights and congressional power to guarantee that right, I contend that democracy and voting rights advocates must act.  Through Congress, the courts and the community, we must work to guarantee the democratic promise of the equal right to vote.

The Promise of an Equal Vote

Decades of grassroots organizing and movement building culminated in the passage of the Voting Rights Act of 1965, eliminating most Jim Crow barriers to voting and opening up the franchise to African Americans and minority voters across the country.  While wiping away Jim Crow injustice, the VRA promised much more—the right to vote is the right to control your destiny in a democracy.  It is the right to choose political leaders responsive to your interests and your needs.  It was this democratic promise that President Lyndon Johnson spoke of when he entreated Congress to pass the VRA: “[o]ur fathers believed that if this noble view of the rights of man was to flourish it must be rooted in Democracy. The most basic right of all was the right to choose your own leaders.”  And with its passage, the VRA became the primary guarantor that the federal government would protect and defend that democratic promise for all American citizens.

Last Tuesday, the Court’s decision in struck at the heart of that democratic promise President Johnson eloquently portrayed.  The Court’s decision is an affront to representative democracy, both to Americans’ right to freely and fairly elect political leaders of their choice, and to Congress’s power to protect that fundamental right.   By effectively discarding Section 5’s required pre-clearance of voting laws in jurisdictions with long histories of discrimination, the Court eliminates the most successful tool for preventing discriminatory voting and redistricting practices.  By rejecting the bi-partisan judgment of the democratically-elected branches of government, Congress and the President, the Court frustrates the federal government’s ability to craft new remedies to address the complicated ways discrimination plays out in our political process.   

Shelby v. Holder and the Voting Rights Act, in Brief.

Let me start with what the Shelby means for the government’s power to protect the right to vote.  By way of background, the main provisions of the Voting Rights Act’s are Section 2 and Section 5.  Section 2 is a nation-wide prohibition barring any voting procedure or practice that discriminates on the basis of race, color or being a member of a language minority group.  It allows the government and individuals to sue to end a particular discriminatory practice or procedure.  Section 5 works differently.  It requires certain jurisdictions with the worst records of voter discrimination to submit any changes to their election laws to the federal government for review (“pre-clearance”) before they could go into effect.  Those jurisdictions must demonstrate that any voting change—from requiring voter ID to moving a polling place—will not harm the voting power of minority voters. In Section 4, Congress defines which jurisdictions are required to get preapproval for their voting laws under Section 5.

This is where the Supreme Court’s Shelby decision comes in.  The Court’s 5-4 decision struck down the Section 4 formula for determining which jurisdictions are covered under Section 5. Chief Justice John Robert’s Majority struck down Congress’s formula as “unconstitutional in light of current conditions.”  The Court opined that Section 4 was unconstitutionally out-of-date, relying on decades old data and practices and not sufficiently adapted to current forms of discrimination. It is important to note that the Court has not (yet) declared unconstitutional Congress’s Section 5 power to require certain jurisdictions to pre-clearing their voting laws.  But before the government can again exercise its pre-clearance authority, Congress must pass a new and updated Section 4 formula determining which jurisdictions will be covered by Section 5.  While the Chief Justice leaves open for now the opportunity for congressional action (and there are no guarantees that the Court will not later strike down Section 5), the idea that the same Congress which could not pass a farm bill or prevent the sequester will be able to fix Section 4 is farfetched. The odds of a congressional fix are slim, and it seems pretty clear that the Shelby Majority knew that.

While Section 5 pre-clearance is still law, the Court left exactly zero jurisdictions subject to pre-clearance enforcement.  Until further notice the DOJ’s voting rights enforcement will be severely constrained and unquestionable less effective.

Shelby’s Real Consequences for Voting Rights

The Court’s decision will have a real and immediate impact on the government’s power to protect the rights of voters to elect leaders of their choice.  This does not seem to concern Chief Justice Roberts who declared “no one can fairly say it [the Congressional record] shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant discrimination’” of the past.  But all you have to do is read the thousands of pages of Congressional testimony, or Justice Ginsburg’s compelling dissent, or talk to political organizers in any of those covered jurisdictions, and it is clear that efforts to limit, dilute and obstruct the rights of minority voters are alive and well. In the aftermath of Shelby, there will be a slew of changes that, by intention or effect, will diminish the voting power of minority citizens.

Take voter ID laws for starters. Until Shelby, Section 5 prevented covered states from implementing strict voter ID requirements that would depress minority turnout.  Now freed of the federal government review, many of the formally covered jurisdictions will go ahead with those laws to the determinant of minority voters.  In fact, they already have. Hours after the ruling, Texas announced it is putting a strict voter ID law into effect.  The law had been blocked by Section 5 because, as the D.C. federal court observed, it “imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty.”  And Texas is not alone.  At last count, four more previously covered states are moving ahead with voter ID laws that will likely take effect before 2014 Congressional elections. 

And then there is redistricting.  Section 5 has been very effective at preventing local jurisdictions from changing their rules to dilute the ability of minority voters to elect candidates of their choice.  Strategies like “packing” minority voters into one highly concentrated district, or “cracking” their voting strength by distributing minority voters across many districts or at-large elections dilute the power of minority voters to influence and elect leaders of their choice.  Shelby County, Alabama, the jurisdiction that took their challenge to the VRA to the Supreme Court, provides a telling example of what we may expect in the absence of Section 5 pre-clearance.  In 2008, Calera, a city in Selby County, passed a redistricting plan that would have eliminated the city’s single majority-black city council district. Section 5 enforcement blocked the change and saved the seat of the city’s only black city council person.  With federal review gone, there is nothing preventing the city from now implementing the change.

That the Voting Rights Act has been an incredibly effective tool to end the barriers to voting is something both Chief Justice Roberts and Justice Ginsburg agree on.  But Justice Ginsburg emphasizes, and the Chief Justice ignores, that second-generation barriers which dilute minority voting strength—through things like racial gerrymandering and  adopting at-large elections—have as serious an impact on the right to vote as outright denial of access to the ballot.  It is in addressing these second-generation barriers where Section 5 has been most effective in recent years.  It is also these second-generation barriers that will be much harder to dismantle with Section 2 litigation. The biggest impact will be felt at the local level—cities and counties outside the national spotlight where minority voters lack the significant infrastructure and resources necessary to litigate against discriminatory voting laws.  Before Shelby, federal oversight was the thing standing in the way of redistricting plans, changes to polling place locations and hours, and voter ID laws that would negatively impact minority voters.  It is here, in these local jurisdictions, that the Shelby decision will be most acutely felt and must be most aggressively monitored by voting rights activists. 

Guaranteeing the Right to Vote after Shelby  

For all those working hard to engage voters, and to protect everyone’s right to participate, Shelby is a setback.  It ends the important protection provided by Section 5 pre-clearance and will hinder DOJ enforcement of voting rights protections.  It will diminish minority voter turnout in some places and will dilute minority voting strength in other places. 

In the aftermath of Shelby, democracy advocates must act. First, we must demand that Congress fix Section 4 and provide an updated set of jurisdictions that must obtain permission before implementing voting laws that could harm minority voters.  That means call your Senator and House member and demand action on the Voting Rights Act fix.   While the current political situation in Congress makes it difficult to pass any legislation, there are Republicans and Democrats in both the House and Senate that have said they will work to update Section 4. Let’s hold them to that promise and hold accountable those who stand in the way.  The public is on our side and so is the President. If there is a time to stand up and demand Congress acts to ensure the right to vote is not diminished or diluted, it is now.

We must also redouble and focus our election protection efforts to ensure that every person’s vote is protected and counted.  Poll monitoring, election protection hotlines and assistance for voters is more critical now than ever.  Get active with the coalition election protection effort 1-866-Our-Vote.  And we must expand this effort to include every election, no matter how small.  Local and off-year elections do not attract the sophisticated election protection programs that are mobilized for presidential and congressional elections. But barriers to voting and discriminatory practices are often most severe and most effective in local and off-year elections.   It is imperative that organizations and activist start working now to expand election protection programs to every election, in every district in the county. Where there are people voting, there must be poll monitors, election protection volunteers and voter assistance efforts.

And the urgency does not end with protecting the vote of every America.  In Part II, I describe the threat that Shelby poses to our democratically-elected leaders’ power to protect the civil and democratic rights of American citizens.  Our elected leaders must have the power and the responsibility to pass and enforce legislation that ensures every American the full promise of American democracy.  We must protect that power and hold our elected officials accountable for using it to expand participation, opportunity and the voice of every American in the population process.