Eight Years Later: The Shelby County v. Holder Decision
By Terry Ao Minnis and Anika Raju
Eight years ago, the Supreme Court of the United States decided the injurious Shelby County v. Holder case. The case gutted a key provision in the landmark Voting Rights Act (VRA), without which an integral safeguard for marginalized communities vanished. Since then, voter discrimination has increased exponentially against communities of color. To fully understand what occurred on June 25, 2013 and the consequent voter suppression attempts, let’s break down the Shelby County v. Holder decision and the current state of voting rights, starting with The Voting Rights Act.
The Voting Rights Act (1965)
The Voting Rights Act (VRA) was passed by Congress in 1965 to prohibit state and local governments from denying American citizens the equal right to vote based on race, color, or membership in a minority language group. Prior to the passage of the VRA, efforts to litigate discriminatory voting practices were largely ineffective, as obstinate jurisdictions would simply replace discriminatory practices after they were struck down with other, newer discriminatory practices.
Responding to the persistent nature of discriminatory schemes in voting, Congress developed a mechanism in the VRA to provide a check on whether proposed voting changes by bad actors would be harmful towards minority voters — i.e., Section 5 preclearance. Section 5 requires certain jurisdictions with a history of discrimination to submit any proposed changes in voting procedures to the U.S. Department of Justice or a federal district court in D.C. to receive approval before the change can become effective.
What happened on June 25, 2013
On June 25, 2013, the Supreme Court weakened the VRA by ruling 5–4 that the coverage formula in Section 4(b) of the Voting Rights Act — which determines the jurisdictions that are covered by Section 5 — was unconstitutional. The ruling found that the coverage formula was based on “decades-old data and eradicated practices,” despite an extensive record confirming that these jurisdictions continued to commit acts of voting discrimination.
The aftermath of Shelby County v. Holder
Since the 2013 decision, there has been an increase in voter suppression bills across the nation as well as other discriminatory voting changes. This is not unexpected, given that the Supreme Court impaired the Department of Justice’s ability to protect against discriminatory and harmful voting changes. The Supreme Court, however, did leave open an opportunity for Congress to revisit the issue and update the coverage formula. Consequently, each new Congress has introduced at least one bill to address this very issue since the decision.
Following the 2020 election, false narratives about voter fraud have gained momentum, increasing partisan support for voter suppression bills. As of May 14, 2021, legislators have introduced 389 bills with restrictive provisions in 48 states. Twenty-two bills with restrictive provisions have already been enacted. Additionally, at least 61 bills with restrictive provisions in 18 states are moving through legislatures.
Unsurprisingly, given the significant role Georgia played in the 2020 elections, Georgia has become home to one of the biggest battlegrounds in voting rights. In recent months, a package of new voter restrictions was signed into law in Georgia. The new law requires that absentee voters prove their identity before voting, prohibits people from distributing food and water to voters waiting in line, and permits the state board of elections to remove local election officials.
Other states like Michigan and Wisconsin have followed suit by introducing legislation to bar election administrators from proactively sending out vote-by-mail applications. These are just a few examples of voter restriction efforts that have been signed into law or that are moving through state legislatures. A complete list of voting bills moving through state legislatures can be found at the Brennan Center for Justice’s State Voting Bills Tracker.
It has never been more clear that Congress needs to restore and modernize the Voting Rights Act in response to the Shelby County v. Holder decision. In addition to restoring a geographic coverage formula for Section 5, Congress should create a complementary provision that targets the practices policymakers have used repeatedly to silence growing minority electorates. Modernizing the preclearance process would ensure that the VRA redresses the most problematic restrictions adopted under circumstances that make them likely to be unfair — before they take effect and without the crushing cost of litigation. Voting discrimination is not a relic of the past; we must have in our arsenal one of the most potent weapons in voting rights — a functioning Section 5.
Terry Ao Minnis is the Senior Director of Census and Voting Programs, and Anika Raju is the Programs Associate for Census and Civic Engagement at Asian Americans Advancing Justice | AAJC.