In 2013, the U.S. Supreme Court seriously weakened key sections of the 1965 Voting Rights Act with its decision in Shelby County v. Holder. A new study conducted by the Brennan Center for Justice shows that following this decision, the voting gap between White and non-White Americans, a key measure of equity in voting access, increased across the country by 5%.
The weakening of the Voting Rights Act began with a 2008 city council election in Calera, Alabama, a town of roughly 17,000 people. Ernest Montgomery, a Black city council member for Calera, was at the center of a fierce redistricting dispute in Shelby County. Calera officials had redrawn its electoral map in 2006 to effectively reduce the number of Black and Brown voters, causing Montgomery to lose his seat during the 2008 election.
The Justice Department sued the county, arguing that the redrawn map violated a component of the Voting Rights Act, which required U.S. districts with a history of discrimination to petition the U.S. Department of Justice or federal courts for permission, or “pre-clearance,” before changing voting practices. Calera had to draw a new, nondiscriminatory map and hold a new election; Montgomery retained his seat. However, lawyers for Shelby County took the case to the Supreme Court, arguing that the change was unconstitutional.
On June 25, 2013, the Supreme Court issued its decision, which sided with the county and hobbled Section 5 of the Voting Rights Act. Voter suppression began almost immediately. On the day of the decision, Texas implemented a voter-ID law that a federal court had previously blocked using the Voting Rights Act. Between 2012 and 2018, thirteen states closed more than 1,688 polling places. Communities of color have seen a disproportionate number of these closures, and voters in predominantly Black neighborhoods spend, on average, 29% longer to cast their ballots. This is why it looked blatantly discriminatory when Georgia banned food and water in voting lines, while also implementing an “exact match” system disqualifying voters based on missing hyphens or accent marks on names, disproportionately impacting non-White voters.
Shelby v. Holder unleashed a widespread judicial assault on the Civil Rights movement. Conservative courts recently overturned affirmative action and have begun to go after anti-discrimination initiatives. The decision has resulted in Jim Crow-era voting exclusions that ensure non-White voters have less say in every area of their lives, which will materialize in the form of issues spanning separate and unequal schooling, residential segregation, employment discrimination, and access to clean water and sewage services. Given the stakes of the upcoming U.S. presidential election, disenfranchisement efforts threaten to unleash a vicious cycle of discriminatory policy reminiscent of America’s Jim Crow history, locking people of color out of having an equal say in how they are governed.
The voter turnout gap increased most rapidly in counties previously constrained by the section of the Voting Rights Act that required federal approval before changes to voting practices. In 32 states, the number of “uncast” ballots in 2020 exceeded the winning presidential candidates’ margin of votes. Given those millions of uncast ballots undoubtedly include votes from people of color, this widening gap is likely consequential and potentially decisive for future elections. “In 2022, White Americans voted at higher rates than non-White Americans in every single state besides Hawaii,” the Brennan study finds.
Disenfranchisement efforts threaten to unleash a vicious cycle of discriminatory policy reminiscent of Jim Crow, locking people of color out of having an equal say in how they are governed.
The study, which draws on a dataset of nearly one billion voter files from the past eight federal elections, also captures changes to voting procedures that may not be codified in state law, such as local officials reducing voting hours or closing polling places. Counties formerly protected by the Voting Rights Act have closed more than 1,600 polling places, and the additional burden these closures place on people of color has been compared to a modern-day poll tax. Communities of color have seen a disproportionate number of these closures, and voters in predominantly Black neighborhoods spend, on average, 29% longer to cast their ballots.
While discriminatory intent is notoriously hard to prove, the Supreme Court’s decision to give counties with a proven history of racial discrimination the authority to change voting practices further disenfranchised voters of color. Perversely, the Supreme Court’s majority ruling justified weakening the Voting Rights Act by highlighting the success of the act in protecting marginalized voters.
Chief Justice Roberts wrote in his Shelby County opinion that “our country has changed,” adding that “while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” His clear message was that the so-called bad old days of racist voter suppression were behind us. However, Roberts cited voter turnout figures from the 2008 and 2012 presidential elections, which showed that African American turnout exceeded that of White voters in “five of the six states” covered by pre-clearance under the Voting Rights Act.
President Obama’s presence on the ballot likely boosted these turnout numbers, as Black candidates for office generally increase Black turnout. Of course, Civil Rights Movement achievements like the Voting Rights Act made increased turnout and Obama’s campaign possible in the first place. If, as Chief Justice Roberts claimed, the county has “changed,” weakening the Voting Rights Act was an attempt to change it back.
“Throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” wrote Ruth Bader Ginsburg in her blistering dissent. The Court’s majority, under Roberts, tossed away the umbrella. Perhaps this was to be expected given that Chief Justice Roberts has been hostile to the Voting Rights Act since his time in the Department of Justice during the Reagan administration. During that time, he fought to make expressed discriminatory intent, rather than unequal outcomes, the standard for measuring voting rights violations.
Although he lost, proving discriminatory intent is often impossible when legislators cloak their discriminatory goals in voter-ID laws that invalidate the types of identification that Black and Latino citizens are more likely to use. Roberts lost the battle while he was in the DOJ, but recent trends in voter suppression show that his vision of restricting non-White access to voting is, for the moment, gaining strength.
Before the Voting Rights Act, America’s political system could be described as an agreement between White Americans that the rights of people of color were disposable. The Voting Rights Act undermined this by protecting the right to vote and strengthening the government’s commitment to the promise of equal suffrage. The recent voting changes across the country reaffirm that non-White access to the ballot remains at the center of debates over American democracy, and Black and Brown voters in this year’s upcoming election face a renewed threat of disenfranchisement.
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