By Hope R. Amezquita, Staff Attorney & Legislative Counsel
It’s been two years since the U.S. Supreme Court gutted the most powerful tool in the Voting Rights Act (VRA). The decision, Shelby County v. Holder, struck down Section 5, the pre-clearance formula---a provision that spent nearly 50 years stopping and deterring discriminatory voting measures in their tracks in jurisdictions with a history of nefarious voting practices. As a result, Virginia and other covered jurisdictions subject to pre-clearance have passed laws and regulations that would have never seen the light of day prior to Shelby.
Shelby has had three major consequences. First, Section 5 no longer blocks or deters discriminatory voting changes. According to the Brennan Center for Justice, before the Court’s decision, the Department of Justice consistently blocked proposed discriminatory laws through litigation and the administrative process---sometimes by simply asking jurisdictions for more information about proposed changes. Section 5 was the most powerful tool to prevent discriminatory voting laws from taking effect. Because covered jurisdictions are no longer required to seek approval for voting changes, they’re also not deterred anymore from passing oppressive voting measures. Since Shelby, Virginia has implemented a stricter photo ID law and purged more than 38,000 voters in 2014 by relying on the controversial, error-prone immigration database, SAVE, and another mistake-ridden inter-state voter registration database. Until Congress passes a new pre-clearance formula under the VRA, it is likely that legislators in these jurisdictions will try to get away with even more voter suppression measures.
Second, voting rights advocates must now take on a much harder, more expensive, and time-consuming fight in the courts to challenge laws that discriminate against minority voters. Under Section 5, a covered jurisdiction was mandated to prove that the proposed law wouldn’t discriminate. After Shelby, the burden of proof has shifted--voters must wait until they’ve been harmed by an already enacted law and then take their battle to court under Section 2 of the VRA to prove discrimination. Section 2 lawsuits are much harder to prove and court battles are drawn out and can cost millions of dollars in legal fees. And, until Shelby, Section 2 cases were largely only used to consider at-large election schemes like redistricting problems---not laws such as photo ID, so the case law is underdeveloped and in a precarious position.
Finally, because Section 5 is an unenforceable empty shell, the public lacks critical information about new, stricter voting laws. The law established around Section 5 often required covered jurisdictions to provide citizens with comprehensive education about new voting laws so that citizens were adequately informed, prepared to cast their vote, and ensured that their vote would count. Often, Section 5 permitted individuals and organizations to give public comment on proposed changes for DOJ pre-clearance consideration. After Shelby, covered jurisdictions aren’t mandated to inform voters about new requirements to vote. Now, citizens are left in the dark and often unprepared to vote. And, this lack of information about voting law changes disproportionately impacts communities of color, voters with disabilities, rural voters with limited transportation, and elderly voters. Section 5 provided voters in jurisdictions with a history of discrimination with much needed government transparency, but Shelby flipped this light switch off.
There may be reasons to be optimistic. There is some bi-partisan support for reviving Section 5. In addition, support has increased for strengthening Section 3 of the VRA, which “bails-in” states under pre-clearance requirements if their voting measures discriminate. In at least a few states, advocates are fighting to get their jurisdiction opted-in. At the state level in 2015, bills that would make voting more accessible increased while oppressive measures slowed down. Ongoing court battles in Arizona, North Carolina, Texas, and Ohio could eventually yield wins against oppressive measures such as photo ID requirements or cuts to early voting, but only time will tell. In Virginia’s 2015 session, the only effort to make the photo ID law stricter was vetoed. Finally, as a result of Shelby, the ACLU and other voting rights organizations are dedicating more energy and resources toward fighting the decision’s effects through public education, advocacy, and taking the battles to court.
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