In 1965, Congress developed a creative and innovative regulatory scheme to address persistent racial discrimination in voting: require the offending jurisdictions, most of which were in the deep south, to preclear any changes to their voting laws with the federal government before those changes could go into effect. These provisions, sections 4(b) and 5 of the Voting Rights Act of 1965, almost single-handedly eliminated 90 years of state-sponsored voting discrimination against African-Americans and other minorities. Last year, in Shelby County v. Holder, the U.S. Supreme Court invalidated the coverage formula of section 4(b), which determined the states subject to the preclearance requirement, because racial discrimination in voting was less widespread in the covered jurisdictions than at any other time in the past four decades. According to the Court, preserving the outdated coverage formula would unduly infringe on the constitutional authority that states have to run their elections without federal oversight.
In the year since Shelby County, it is unsurprising that states have viewed the invalidation of much of the preclearance regime as a green light to make voter registration and turnout more difficult. According to a recent Brennan Center report, the November midterms will be the first major federal elections with new voting restrictions in place in 15 states. In one well-known example, a federal judge upheld proof of citizenship requirements for voter registration in Arizona and Kansas, which likely will have a negative impact on minority voter registration. Similarly, North Carolina passed an omnibus election regulation bill, imposing a restrictive voter identification requirement; reducing the amount of early voting days; and eliminating same day voter registration. The media has pointed to this law as one of the most restrictive in the country, but other states are competing for this distinction. Arkansas, for example, has imposed a strict voter identification requirement for both in-person and absentee voters, and Ohio prohibits those who lack identification or a social security number from voting provisionally. At least 18 other states have bills pending that would similarly restrict access to the ballot.
Despite these developments, the lesson of Shelby County should not be that states have broad authority to impose restrictive voting regulations. The true lesson of the decision, one year later, is that even the most painful and costly loss can be a vehicle for effectuating change. The loss of the preclearance regime forced advocates to be more aggressive in using creative legal arguments and obscure statutory provisions in voting rights litigation. In the wake of the decision, the Department of Justice filed lawsuits against Texas and North Carolina seeking to reimpose preclearance using a relatively obscure and little known provision of the Voting Rights Act. This provision, section 3(C), allows courts to subject to preclearance those jurisdictions that are found guilty of intentional discrimination in violation of the U.S. Constitution.
Likewise, advocacy groups have successfully challenged restrictive voting laws since Shelby County. In recent months, federal judges have invalidated voter identification laws in Wisconsin and Pennsylvania, with similar challenges pending in other states. Notably, the Wisconsin case was the first successful challenge to these restrictions under the Voting Rights Act. Last week, a federal judge issued a preliminary injunction barring Ohio from limiting early voting to military personnel on the three days before Election Day, and ordered the state to restore early voting on those days for all eligible voters. Like the Wisconsin decision, the Ohio case creates favorable precedent that voting rights advocates can use to challenge restrictive laws going forward.
But for Shelby County, advocates might not have responded to the current assaults on the right to vote with this admirable level of ingenuity and resourcefulness. The decision forced the civil rights community to craft both an offense and a defense in this fight, as opposed to simply defending the existing terrain. Defensive tactics and fear had insulated the Voting Rights Act from any substantial updating when Congress revisited the issue of preclearance in 2006, which ultimately was its undoing in the Court. While Shelby County was a setback, the successes of the past year suggest that it may have been a much-needed call to action. Hopefully, favorable progress will continue, and on subsequent anniversaries, voting rights advocates will be able to look back on Shelby County as an example of losing the battle, but winning the war.