Everything That’s Happened Since Supreme Court Ruled on Voting Rights Act

Last year, we wrote extensively about photo ID laws and the Supreme Court’s decision to strike a key section of the Voting Rights Act of 1965. Now, with gubernatorial elections in New Jersey and Virginia, and the debt ceiling and healthcare debates already shaping the 2014 midterms, we’re revisiting voting policies to see which states have enacted tougher restrictions since the Supreme Court ruling in June.

Remind me – what is Section 5 of the Voting Rights Act?

Under the Voting Rights Act, states and localities with a history of racial discrimination needed to get permission from the federal government to enact any changes to their voting laws, in a process called “preclearance.” As of June 2013, nine states, mostly in the South – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – needed to get any new voting laws pre-approved. Some counties and townships in California, Florida, New York, North Carolina, South Dakota and Michigan were also subject to preclearance.

Section 5 first applied to states that imposed literacy tests or other unfair devices, and had low voter registration or turnout. Congress later expanded the law to add jurisdictions with sizable minority populations and English-only election materials.

States and localities could “bailout,” or get off the preclearance list, after 10 years of elections without any problems. Several smaller jurisdictions bailed out over the years, including parts of Connecticut, Idaho, Maine, Massachusetts, Wyoming, Hawaii, and Colorado.

Of course, some of the biggest voting law battles of the 2012 election were in states not covered by Section 5 at all, such as Pennsylvania and Ohio.

What did the Supreme Court strike down in Shelby County v. Holder?

The Supreme Court decided, 5-4, that the preclearance formula was unconstitutional under the 10^th  Amendment, which gives states the power to regulate elections. The Court ruled that the coverage formula was “based on 40-year-old facts having no logical relation to the present day.”

From the decision:

The preclearance criteria was once constitutional, but it isn't anymore. (p. 3)

One important technical point: the Supreme Court actually left Section 5 of the Voting Rights Act – the part of the law that describes how preclearance works – intact. Instead, the Court struck down Section 4, which explains which states and localities are subject to preclearance. If Congress amends Section 4, the Justice Department can start enforcing Section 5 again.

Why does this matter? 

While literacy tests are a thing of the past, voting rights advocates say that statutes that limit early voting and registration, require voters to show photo ID, and purge voter rolls still disproportionately affect poor and minority voters.

The Supreme Court’s June 2013 decision also effectively shifted the burden from states to citizens. Before, a state subject to preclearance had to demonstrate that a new voting law was not discriminatory and let voting law experts in the Justice Department evaluate it before it could be implemented. Now it is up to voters to challenge voting laws by filing lawsuits under Section 2 of the Voting Rights Act, which prohibits racial discrimination.

But most court cases involving Section 2 have been limited to redistricting, not other controversial voting measures, says Yale University law professor Heather Gerken.

“With redistricting, there’s always one very wealthy political party or another who can hire some very good lawyers and go into court and challenge it,” Gerken said. “But a lot of the types of things that were challenged under Section 5 were smaller questions, like, ‘Can you change a polling place? Can you shut down early voting hours in ways that might affect the black community?’ There are things smaller than redistricting that can fall through the cracks.”

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