The 15th Amendment to the United States Constitution, ratified in 1870, prohibited the denial of the right to vote based on race, theoretically protecting the voting rights of Black Americans. But Black citizens’ exercise of voting power was short-lived. The Jim Crow South almost immediately implemented barriers to voting, like poll taxes and literacy tests, which were strategically deployed against Black voters. These discriminatory voting policies, combined with violence and intimidation against would-be Black voters, gutted the 15th Amendment’s promise of equal voting rights: By the turn of the 20th century, Black Americans in the South were almost completely disenfranchised.
The promise of the 15th Amendment would not be fulfilled until nearly 80 years later, when President Lyndon B. Johnson signed the Voting Rights Act of 1965 (VRA) into law. The VRA prohibited discriminatory state voting barriers and, crucially, required federal preclearance of voting policy changes for certain “suspect jurisdictions.” States and jurisdictions with a history of voting discrimination or disparities were required to seek approval from the Department of Justice or the U.S. District Court for Washington, D.C. before making changes to their voting laws. L Holder
Preclearance was a huge success. The review process prevented discriminatory voter suppression laws from taking effect, and in turn, Black Americans experienced unprecedented access to the ballot box. The disparity in registration rates between white and Black Americans fell from nearly 30 percentage points in the early 1960s to just eight points by the 1970s. By the end of 1965, a quarter of a million new Black voters had been registered. Black voters turnout and Black representation in elected offices increased accordingly.
The effects of Black Americans’ increased participation and representation were far-reaching. For example, the VRA narrowed the wage gap between Black and white men in the areas where it was most strictly enforced. Between 1950 and 1980, the gap between median wages of Black and white workers in the South narrowed by approximately 30 percentage points. The Voting Rights Act was responsible for about one-fifth of that reduction. Black political representation also improves health outcomes for Black Americans: For example, a higher rate of Black political representation in city government is associated with a lower Black infant mortality rate. Listen to the Thurgood Marshall Institute Justice Above All podcast on the health impacts of voting here.
Despite these important effects, in 2013, the Supreme Court took a first strike at the VRA in their ruling in Shelby County v. Holder. The Court rejected as unconstitutional VRA’s Section 4, which included the coverage formula used to determine which jurisdictions were subject to preclearance . The court held that the coverage formula was outdated and did not reflect the changes to voting disparities that had occurred since the inception of the VRA . Of course, the narrowing of registration and turnout gaps in covered jurisdictions was a result of preclearance protections , which Justice Ruth Bader Ginsburg famously observed when she wrote in dissent, “throwing out preclearance 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.”
The Shelby County decision turned the rainstorm into a hurricane, and the effects were immediate. Just minutes after the Court’s decision was announced, then-Texas Attorney General Greg Abbott bragged on Twitter that the state’s previously-struck down voter ID law “should go into effect immediately .” Other states followed suit and passed restrictive voter ID laws and other vote-suppressing policies that hurt Black residents’ chances to elect candidates of their choice. In the first redistricting cycle after preclearance was lifted, district maps were drawn to disperse or tamp down Black political power in many places .
However, t here are still some avenues to challenge discriminatory voting laws . The Supreme Court left intact Section 2 of the VRA, which prohibits voting practices or procedures that discriminate on the basis of race. But challenging discriminatory voting laws under the VRA without the benefit of preclearance has proven difficult. Section 2 lawsuits must be brought on a case-by-case basis, which leaves the burden to voting rights attorneys and partners to challenge discrimination in voting. Experts have likened trying to address voting discrimination under Section 2 as a game of “whack-a-mole,” as new discriminatory voter provisions pop up uncontrollably as some others are successfully attacked.
The Shelby County v. Holder decision opened the door for the implementation of suppressive voting laws and racial gerrymandering tactics that have severely harmed Black voter power.
1870-1965: The 15th Amendment prohibited the denial of the right to vote based on race, theoretically protecting the voting rights of Black Americans. But Black citizens’ exercise of voting power was short-lived. Jurisdictions almost immediately implemented barriers to voting, like poll taxes and literacy tests, which were strategically deployed against Black voters. These discriminatory voting policies, combined with violence and intimidation against would-be Black voters, gutted the 15th Amendment’s promise of equal voting rights: By the turn of the 20th century, Black Americans in the South were almost completely disenfranchised.
1965-2013: The Voting Rights Act of 1965 (VRA) prohibited racial discrimination in voting and required states and jurisdictions with a history of discrimination to seek approval from the federal government before making changes to their voting laws. This was known as “preclearance.” Preclearance was a huge success, preventing discriminatory voter suppression laws from taking effect. As a result, the disparity in voter registration rates between white and Black Americans fell from nearly 30 percentage points in the early 1960s to just eight points by the 1970s. By the end of 1965, a quarter of a million new Black voters had been registered. Black voter turnout and Black representation in elected offices increased accordingly.
2013-today: In their Shelby County decision, the Supreme Court took a first strike at the VRA. The Court rejected as unconstitutional VRA’s Section 4, which included the coverage formula used to determine which jurisdictions were subject to preclearance. The decision opened the door for the implementation of suppressive voting laws and racial gerrymandering tactics that have severely harmed Black voter power.
As soon as the Supreme Court’s decision in Shelby County was announced – within hours, in fact – states previously covered by preclearance rushed to enact new voter laws that would restrict access to the ballot, especially for Black voters, because they were now unobstructed by the preclearance requirement. Here we highlight key examples of the immediate state voter law changes that followed the Shelby County decision.
Texas’ t hen-Attorney General Greg Abbott said in a statement “ With today’s decision, the State’s voter ID law will take effect immediately ” and tweeted to the same effect. This voter ID law severely restricted the forms of accepted voter IDs . Th e law had previously been rejected by the federal government in 2012, whe n preclearance was intact, because Texas was unable to prove that the law would not discriminate against Black and Latinx voters. But without preclearance, Texas was unobstructed in enacting this discriminatory voter ID law. The law was ultimately struck down due to its racially discriminatory impact after a years-long battle in court led by LDF and partners. It was later replaced by a somewhat less restrictive voter ID law. Learn more about LDF’s role in challenging Texas’ discriminatory photo ID law s here .
In 2014, Mississippi enacted a new voter photo ID law that severely restricted the forms of accepted voter IDs. The law had previously been awaiting federal preclearance. Then-Secretary of State Delbert Hosemann announced on June 25, 2013 (the day of the Shelby County decision) that the state would be moving forward with the law now that it was unobstructed by the preclearance requirement.
In 2014, Alabama enacted a new voter photo ID law that severely restricted the forms of accepted voter IDs , eliminating options that were previously accepted such as Social Security cards, birth certificates, Medicaid or Medicare cards , and Electronic Benefits Transfer (EBT) cards. Th e plans to enforce the photo ID law were released on June 2 8 , 2013, just three days after the Shelby County decision. LDF filed a lawsuit challenging Alabama’s restrictive photo ID law ; l earn more about the case here .
Less than two months after the Shelby County v. Holder decision, then-Governor Patrick McCrory signed one of the most restrictive voter laws in the country, known as the “ monster voter suppression law .” The law reduced early voting, eliminated same-day registration, banned out-of-precinct voting, ended pre-registration for 16-year-olds, and instituted a strict voter photo ID requirement. Because preclearance was no longer enforced, th is voter suppression law had to be challenged and litigated after going into effect. It was ultimately struck down by the courts in 2016 , with the judges stating that it “ target[ed] African Americans with almost surgical precision .”
As we saw, in the immediate aftermath of the Shelby County decision, many states previously covered by preclearance rushed to enact restrictive voter ID laws (among other restrictions on voting access, such as reduced early voting). In fact, the data on which states have photo ID requirements for voting demonstrate a substantial jump in photo ID requirements for states previously covered by preclearance compared to those not covered. Photo ID requirements disproportionately burden Black voters and other voters of color.
Before the Shelby County decision, states and localities covered by preclearance had to demonstrate to the Department of Justice that any planned polling place closures would not have a racially discriminatory impact . Since the Shelby County decision, jurisdictions are no longer required to demonstrate that polling place closures are not discriminatory and are able to close polling places at the last minute without notifying voters. Research from the Leadership Conference Education Fund demonstrates how counties once covered by preclearance made widespread polling place closures after the Shelby County decision. Between 2012 and 2018, counties with past histories of racial discrimination in voting closed at least 1,688 polling places. Polling place closures have continued to be a major issue in recent elections .
Voter purges are often-inaccurate processes of deleting names of registered voters , which can prevent eligible voters from casting a ballot when done incorrectly . While voter purge practices may appear neutral, they often have discriminatory impacts , such as disproportionate purges in neighborhoods with more voters of color or disproportionate purges of voters with “non-citizen” names, leading to more voters of color showing up at the polls and being unable to cast a ballot. A study of voter purges found that the Shelby County decision led to a significant increase in voter purge rates in counties previously covered by preclearance . Given that preclearance was in place to prevent jurisdictions from disenfranchising voters on the basis of race, a jump in voter purges in previously covered counties following the Shelby County decision could be indicative of racially motivated voter suppression .
Because of Shelby County v. Holder, 2020 marked the first congressional redistricting cycle in six decades without the enforcement of preclearance. As a result, the impacts of Shelby County on redistricting and voter dilution are only recently being evaluated , and there are several o ngoing lawsuits challenging the discriminatory impacts of new maps. Additionally, it is difficult to quantify the impacts of Shelby County on redistricting because of the other changes that have occurred between 2010 and 2020 , including demographic changes and changes in voting behavior and preferences. E xperts agree that people of color remain significantly underrepresented in elective office.
In a recent study, experts noted that the number of people of color in the U.S. House of Representatives would jump from 107 to 144 if they were represented proportionate to their adult citizen populations in their respective states
The same study found that by applying the same technical assumptions of the current map, Texas could have at least 16 Congressional districts in which Latinx and Black voters have a realistic opportunity to nominate and elect their preferred candidates. At present, there are only 11 to 13 districts where this is the case.
Research quantifying the impacts of the Shelby County decision on local level redistricting is even more limited. Much of preclearance activity historically occurred at the local level, so it is likely that many of the impacts of Shelby County and the gutting of preclearance are felt at the local level. In the following vignettes, we shed light on some examples of local implications of Shelby County.
Black and Hispanic voters make up about 38% of Galveston County’s population, and until 2021, they made up the majority of the electorate in one of four c ounty commissioners court seats: Precinct 3 . For 30 years, Black and Hispanic voters were able to join forces to elevate Black leaders to the commissioners court through Precinct 3 , and Black voters amassed enough power to elect Texas City’s first Black mayor and a city commission represented by mostly people of color. But Shelby County exempted Galveston from preclearance , and in 2021, the county had its first opportunity to redraw district lines without proving to the federal government that it was not discriminating. The white majority on the commissioners court split Black and Hispanic voters into majority-white districts, giving white voters – who make up 55% of the county ’s population – at least a 62% share of the electorate in each precinct. Without a majority in any precinct, Black and Hispanic voters under the 2021 map would be unlikely to elect a candidate of their choice in any district . The Department of Justice’s lawsuit against Galveston County over the map is ongoing.
Between 2010 and 2020, Tuscaloosa ’s population grew by about 10% , driven largely by increases in the Black and Hispanic populations . Despite the growth of Tuscaloosa’s Black and Hispanic population s , the majority-white city council drew up a post-Shelby map that would not meaningfully improve Black political representation in the city’s elected offices. Tuscaloosa residents proposed a different map, which would distribute the Black voting population among four districts rather than three – allowing the Black electorate to elect a fourth seat on the seven-member council. But the Tuscaloosa City Council, in its first redistricting session after it was released from preclearance, voted to approve its own map preserving the majority-white council.
The 2020 Census revealed growth in Baton Rouge’s Black resident population, with 45.2% of the population identifying as Black and 42.9% as white. Among voting age residents, the racial gap in population is less than one percentage point. Even though this growth warranted new district configuration, the majority-white Metro Council voted to maintain status quo districts that did not reflect growing community diversity in the first post-Shelby redistricting cycle. A counterproposal that would create an additional majority-Black district, allowing Black residents to elect another candidate of their choice, was rejected.
Shelby County v. Holder was a challenge to the constitutionality of Sections 4(b) and 5 of the VRA and ultimately dismantled key protections of the VRA. LDF vigorously defended the VRA’s constitutionality in the Supreme Court and in the lower courts.
A decade after Shelby County v. Holder was decided, four LDF attorneys, some of whom were directly involved in litigating Shelby County v. Holder, reflect on the case’s impact, the loss of preclearance, and the path forward for voting rights.
The Thurgood Marshall Institute team explores how access to the ballot can make Black communities he althier. Equal and fair ballot access is the pinnacle of a healthy, functioning democracy, and it also has crucial health impacts.
Without federal protections, voters of color, voters with disabilities, and vulnerable communities will be further silenced by strategic and manipulative efforts to suppress their vote.
On June 8, 2023, the U.S. Supreme Court issued its decision in Allen v. Milligan and upheld the previous unanimous district court’s determination that Alabama’s maps violate Section 2 of the Voting Rights Act.
Stainless Steel Flange Clamps © Copyright 2023 NAACP Legal Defense and Educational Fund, Inc.