This past Sunday, June 25, marked 10 years since a Supreme Court decision that profoundly altered the election law landscape and dismantled 50 years of protections against racially discriminatory voting laws: Shelby County v. Holder.
That decision was the first of two major catalysts for restrictive election legislation in the past decade, the second being the 2020 presidential election.
The Shelby decision and the 2020 election each sparked years of legislative action making it harder for eligible Americans to vote. Each tells the story of politicians and special interests doing whatever they can to limit democracy, avoid accountability, and maintain political power. Each will unfortunately influence and inspire restrictive election legislation for years to come.
In this month’s Hot Policy Take, we take a closer look at these two significant moments in election history, and how they sparked waves of election laws that restrict voting access across the country today – restrictive laws that often disproportionately harm voters of color.
The Origin of the Voting Rights Act and Preclearance
In the midst of the Civil Rights Movement and after a century of deliberate disenfranchisement of Black Americans’ in many formerly-Confederate states and counties – from poll taxes and literacy tests to Ku Klux Klan violence – the Voting Rights Act of 1965 (VRA) was passed.
Section 5 of the VRA established a preclearance system requiring certain jurisdictions with histories of racist voter suppression to have all changes to election law or practices approved by the Department of Justice or U.S. District Court for the District of Columbia before those changes could go into effect.
Prior to the Shelby decision, 15 states were subject to preclearance under Section 5. Nine states were subject to full preclearance: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia; and specific counties or townships were covered in an additional six states: California, Florida, Michigan, New York, North Carolina, and South Dakota.
For 50 years, this preclearance system blocked laws that disproportionately suppressed voting access for voters of color from taking effect in these jurisdictions.
Shelby County v. Holder: Eliminating Protections Against Race-Based Voter Suppression
In the years leading up to the Shelby decision, there were indicators that Section 5 of the VRA was likely to fall – and state legislatures were stocked with newly-elected lawmakers eager to pass voter suppression legislation.
In 2009, the Supreme Court heard Northwest Austin Municipal Utility District No. 1 v. Holder, a case touching on the constitutionality of the VRA’s Section 5 preclearance provisions. This case left many with the impression that the preclearance system’s days were numbered.
Following the historic victory of President Barack Obama in 2008, a wave of candidates who sought to suppress voter access were elected up and down the ballot in 2010. As a result, in the years following the 2010 midterms, state legislatures around the country began to enact laws restricting access to the ballot box – laws they knew would be blocked by Section 5 – in anticipation of its fall.
On June 25, 2013, in a decision written by Chief Justice John Roberts, the U.S. Supreme Court gutted the VRA, striking down the preclearance formula and rendering Section 5 toothless. In dissent, Justice Ruth Bader Ginsburg famously remarked that eliminating the preclearance system due to a lack of evidence of racially discriminatory election laws was akin to “throwing away your umbrella in a rainstorm because you are not getting wet.”
The First Wave: [1] A Surge in Restrictive Photo ID Laws Post-Shelby
The First Wave: A Surge in Restrictive Photo ID Laws Post-Shelby
For 50 years, the VRA protected voter access by blocking strict photo ID laws with a discriminatory impact from going into effect. With the Shelby decision, a deluge of those laws took effect in the states that were previously covered. Some laws were enacted right after Shelby and some were intentionally enacted in anticipation of the decision, taking effect after the fact.
Within hours of the release of the Shelby decision, the Attorney General of Texas announced that the state would begin enforcing a photo ID law that had been denied preclearance in 2012. Mississippi began enforcing its 2012 photo ID law for their primary elections the following year. Alabama also implemented its 2011 photo ID law for its 2014 elections. A few months before the Shelby decision, Virginia adopted a strict photo ID law that was implemented later that year, following the decision.
In the weeks following the Shelby decision, North Carolina enacted a law creating a strict photo ID requirement that the Fourth Circuit Court of Appeals later found to “target African Americans with almost surgical precision.” After that decision, North Carolina tried again to enact a strict photo ID requirement that was the subject of years of litigation before it was finally permitted to go into effect this year following a reconfiguration of the state supreme court.
All told, a third of the states subject to preclearance (five of the 15) enacted photo ID laws in anticipation of, or immediately following, the Shelby decision. None of these proposed photo ID policies were implemented until after preclearance requirements were lifted. In the years since, only one state formerly subject to preclearance (Arizona) has enacted a law relating to in-person photo ID.
A New Wave: Restrictions on Mail Voting Enabled by Shelby Decision
As previously reported by Voting Rights Lab, widespread misinformation regarding the administration of the 2020 presidential election inspired a surge in restrictive voting bills focused on mail voting – many sparked by conspiracy theories regarding the use of mail ballots at the height of the COVID-19 pandemic. While the Shelby decision did not inspire this new wave of voter suppression, it did enable it. The fact that these laws took effect without any inquiry into their impact on historically disenfranchised populations demonstrates the lasting impact of Shelby.
Since the November 2020 election, seven Section 5 states have passed mail voting restrictions: Arizona, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Texas. By contrast, in the first seven years following the fall of Section 5 (2013 – 2020), just four states that were previously covered by preclearance passed laws restricting mail voting (Alabama, Arizona, North Carolina, and Virginia).
Following the 2020 election, Texas passed legislation requiring mail voters to provide a specific ID number on mail ballots. Georgia, Louisiana, and Mississippi took steps to restrict drop box access and eliminate other ballot return options. Florida and South Carolina did both.
Mail voting is not the only voting option to be targeted with restrictive legislation in recent years. In the past two and half years, five of the 15 states formerly subject to preclearance passed legislation searching for non-citizens for voter list removal without any examination to ensure these new laws do not have a discriminatory impact on citizens of color. It is telling that of the seven states to enact this type of policy since 2021, five were formerly Section 5 states. For more on trends in voter list maintenance see our May Hot Policy Take.
States Try to Fill the Gap: State Voting Rights Acts
In the absence of federal action a decade after Shelby, some states are stepping up to independently fill the gap, passing state-level Voting Rights Acts that require localities to preclear election policy changes and ensure new policies are not racially-discriminatory.
These state Voting Rights Acts have been introduced in eight states since 2021 and enacted in three states. Virginia passed the first state-level preclearance system in 2021. New York followed suit in 2022, and Connecticut just adopted a Voting Rights Act with preclearance earlier this month. Just last week Michigan introduced a similar law.
Without federal protection against racially discriminatory voting laws, these state-level protections against discriminatory local policies seem to be picking up momentum.
Conclusion
The past decade has seen radical transformations to the election law landscape. The Voting Rights Act used to serve as a backstop to protect historically-disenfranchised populations from being targeted by partisan-motivated attacks on voter access – but that’s no longer the case.
With the Supreme Court’s Shelby decision 10 years ago, we’ve witnessed what can happen to voter access without firm federal protections for voters in place. In the years immediately surrounding the Shelby decision, strict photo ID laws proliferated in preclearance states, and in the years since the November 2020 election, mail voting has similarly come under intense attack. Voter registration policies seem poised to be next to fall prey to partisan meddling – but without federal protection, the possibilities are endless.
To learn more about the laws that have shaped elections in preclearance states as a result of the Shelby decision, click here.