A year after Supreme Court strips Voting Rights Act, prospects for change

A year after Supreme Court strips Voting Rights Act, prospects for change

- in Law and the Courts


It’s been a year since a sharply divided Supreme Court declared victory in the war against voter discrimination and suppression and tossed out one of the most powerful weapons used in that battle – preclearance under Section 5 of the Voting Rights Act.

Times had changed, Chief Justice John Roberts wrote for the majority in Shelby County v. Holder, and voting conditions had improved since the Act’s adoption in 1965.

Admittedly, he added, preclearance played a large part in that improvement. But requiring certain suspect states or jurisdictions to seek preapproval of voting law changes as provided in Section 5 was no longer necessary.

That logic prompted his colleague, Justice Ruth Bader Ginsburg, to liken the gutting of preclearance to “throwing away your umbrella in a rainstorm because you are not getting wet.”

What followed here and elsewhere across the country proved her point.

Some states continued with efforts to restrict voting already underway before the high court handed down its decision. Others resurrected laws formerly deterred by preclearance. And others still, like North Carolina, rushed to enact comprehensive bills that would never have survived preapproval by a court or the Justice Department.

The result has been one of the most restrictive voting environments the country has seen since before the enactment of the Act.

This national struggle over voting rights is the greatest in decades,” experts from the Brennan Center for Justice said in this report.

Voters in nearly half the country could head to the polls in November worse off than they were four years ago. This needs to change.”


In the years leading up to Shelby County, the Act’s preclearance requirement had indeed been effective in reigning in restrictive voting measures enacted across the country, according to a follow-up report released this week by the Brennan Center.

In the 15 years before its operation was halted, Section 5 blocked 86 laws through its administrative process and several more through litigation,” the Center’s Tomas Lopez wrote. “At least 13 of these laws were blocked in just the final 18 months before the Shelby Court’s ruling.”

Preclearance didn’t stop all efforts at passing restrictive voting measures, particularly in states not subject to Section 5. Since 2010, 22 states have passed new voting restrictions.

But with the threat of preclearance gone, states could move forward with the enforcement of such changes – as several of the Section 5 states did.

Source: Brennan Center
Source: Brennan Center

North Carolina lawmakers led the way last summer, growing a dormant 15-page voter ID bill into a 50-page monster and pushing it into law in record pace.

That law, the “Voter Information Verification Act,” or VIVA, has uniformly been called the most restrictive measure passed since the Shelby County decision.

Not only does VIVA require voter ID, it also shortens the early voting period, eliminates same-day registration, and prohibits out-of-precinct voting – all tools which lawmakers knew boosted African-American turnout at the polls.

Though only one primary election has occurred since the law’s passage, problems have already surfaced.

We didn’t shorten early voting,” the governor said in a clip that went viral. “We compacted the calendar, but we’re going to have the same hours in which polls are open in early voting and we’re going to have more polls available.”

As it turned out, trying to fit the same number of hours into seven fewer days and finding the sites and staff needed to do that became a problem for many counties — so much so that at least 40 asked the state board of elections to allow them to do exactly what the governor said would not happen: reduce the number of early voting hours.

That’s likely to be the first of many problems to occur as voting changes here and elsewhere are put to the test in the November 2014 elections and beyond.

Source: The Leadership Conference
Source: The Leadership Conference

Because voting discrimination comes to light near major elections or right after the decennial census, we are only beginning to see examples of potentially discriminatory voting changes post-Shelby,” said the authors of this report released by the Leadership Conference on Civil and Human Rights.

Already though voting changes in at least seven states, including North Carolina, are setting off alarms.



In the early ’90s, North Carolina ranked about 46 in voter turnout,” state Rep. Mickey Michaux said this past March, beginning his remarks at a day-long gathering in Rocky Mount – one of a series of hearings being held by the Lawyers Committee for Civil Rights to identify the need for continuing protections against voting discrimination across the country.

We started introducing legislation that would try to increase that voter turnout,” Michaux continued.

We did early voting, we did same-day registration. By the time we had passed all of those in the early 2000s, we had risen from 46th to 11th in voter turnout in the country. And the very pieces of legislation that we passed in order to increase that voter turnout, those are the same pieces of legislation that House Bill 589 repealed. So, it’s very clear to me, and it should be to everybody else, what the purpose of 589 was.”

Those folks who passed 589 called it the “Voter Information Verification Act,” or VIVA. We attach another meaning to that word, VIVA. It’s the “Voter Intimidation and Vilification Act.”

The hearing brought together state election officials, attorneys, advocates, poll workers, and voters who testified about problems already experienced and otherwise anticipated with the implementation of VIVA.

At another point, Anita Earls, an attorney with the Southern Coalition for Social Justice who represents plaintiffs in the voting lawsuits now pending in state and federal courts here as well as in the redistricting lawsuit, noted the contradictions in explanations offered by state officials as reasons for their gerrymandering and vote-tinkering.

Referring to lawmakers’ professed need to redraw districts where black voters, though still in the minority, had been electing their candidates of choice, Earls said:

We have a legislature that apparently proved to the satisfaction of a court that the racism in this state was so bad that they had to do that in 2011. And yet, two years later in 2013, they completely ignore the impact of House Bill 589 on black voters. The evidence in the record before the legislature showing that these measures would disproportionately make it harder for black voters to vote in this state — they could ignore all that evidence and constitutionally pass that law. I submit to you that those realities don’t coexist, right?”

The Committee will release its findings on the state of voting practices in North Carolina later this year.


Reaction to the Shelby County decision and its impact here and elsewhere has led to more than just hearings and reports.

Lawsuits of course are pending in state and federal court – three of which are headed into hearings in July on whether the provisions of North Carolina’s new law should be suspended during the November 2014 elections.

And efforts are underway at the federal level to restore some of the protections that Section 5 preclearance once offered.

Yesterday, on the one-year anniversary of Shelby County, the Senate Judiciary Committee heard testimony from several witnesses in an effort to jump start bipartisan support for a bill introduced in January that would update and amend the Voting Rights Act.

As initially introduced, the Voting Rights Amendment Act would establish a rolling nationwide trigger of coverage under the Voting Rights Act for states or jurisdictions with a record of recent voting rights violations. It would also expand the ability of federal courts to “bail-in” states or jurisdictions to include those in which voting changes result in discrimination. (Current law only permits bail-in for intentional violations.) And it would make obtaining preliminary injunctive relief easier, given that voting rights cannot often be vindicated after an election is already over.

It is not a perfect bill, with critics from both parties voicing objections, and it has thus far garnered only lukewarm support.

But it is a first step, one that witnesses yesterday urged Congress to take immediately with the prospect of elections in the fall.

This record of discriminatory voting changes—over just a one-year period—illustrates that adopting the Voting Rights Amendment Act is the wisest constitutional course,” Sherrilyn Ifill, President of the NACCP Legal Defense Fund, told the Committee yesterday.

The Voting Rights Amendment represents a bipartisan response to the Court’s invitation in Shelby County to update the Voting Rights Act. With the discriminatory voting changes we have witnessed in the past year, combined with the many incidents compiled in advance of Shelby County, there is no question that this legislation is vital.”

About the author

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at sharonmccloskey.com or @sharonmccloskey.