For the third episode of our eighth season, we talked withMarcia Johnson-Blanco of the Lawyers’ Committee’s Election Protection program.We sometimes assume that we need to be most worried about external threats toour democracy, but after talking with her, it’s clear that’s not the case.

One of the most worrying election issues we talked about wasthe 2013 Shelby County v.Holder Supreme Court Case, and the damage it did to certain states’electoral infrastructure. To understand the case, we first need to look at theVoting Rights Act, and the protections it provides voters.

The Voting Rights Act

The VotingRights Act (VRA) was signed into law on August, 9 1965 by PresidentLyndon B. Johnson, at the height of the US Civil Rights movement. The VRA was specificallywritten to enforce the voting rights given to African-Americans under theFourteenth and FifteenthAmendments of the Constitution. Although these laws had been on thebooks since the 1870s, states (and the Supreme Court) found ways to limit thevoting rights of minorities through a number of SupremeCourt cases and discriminatory election practices like literacytests (check this samplefrom Alabama in 1965), polltaxes, and white-onlyprimaries.

The VRA ended these unfair practices, and made sure voting remained free and fair for all eligible voting Americans. It fully banned practices like literacy tests (Section 2), and created a formula to identify states and districts that abused voting rights in the ways mentioned above (and other ways) in Section 4. Section 5 mandated that any of the states or districts named in Section 4’s formula must submit any changes in electoral law or polling locations to the Federal Government for approval.

The system of federal approval worked. According to The Joint Center for Political and Economic Studies, white registered voters outnumbered black registered voters in the South by 2 or 3-to-1 in the 1960s. Fifteen years later, these numbers were roughly equal. Unsurprisingly, only 70 African-Americans held elected office in the South in the mid-1960s. At the turn of the millennium, this number had risen to more than 5,000.

Shelby County v.Holder

For 48 years the VRA protected minority voters, ensured thatpolling locations remained open and voting laws around the country remainedfair. Then, in 2013, the (conservative-majority) Supreme Court delivered adevastating blow to the integrity of the VRA, shredding the safety-net createdby Sections 4 and 5.

Shelby County, Alabama, brought a lawsuit against the federal government in 2010, alleging that Sections 4 and 5 of the VRA were unconstitutional on the basis that they were outdated. They lost in the District Court of Washington DC. Undeterred, they appealed to the US Court of Appeals for the District of Columbia—which they also lost. The case was then appealed to the US Supreme Court, which reversed the lower courts’ opinions, and decided that Section 4 of the VRA—the section responsible for deciding which districts had to submit voting law changes for federal approval—was unconstitutional because such discrimination “no longer existed.” Without the formula to decide which districts had to seek federal approval, Section 5 became unenforceable. Essentially, any polling district or state in the US—regardless of their record on voting suppression—could do as they pleased when it came to voting laws.

And, as it turned out, the kind of discrimination theSupreme Court ruled “no longer existed” stilltotally existed. As Marcia notes in our interview, thesame day the Supreme Courtissued their decision, Texas installed a voter I.D law that had already beenfound discriminatory under the VRA. This was certainly not a coincidence, andthings only got worse.

The Impact of ShelbyCounty v. Holder

The legacy of Shelby County v. Holder has not been kind for voting rights in the US. In 2016—the first Presidential Election after the decision—14 states had enacted new voting restrictions for the first time, according to the Brennan Center for Justice. Six of these states would have been forced to submit these new restrictions to the federal government under the VRA if it had still been in effect.

A ViceNews investigation from 2018 found that jurisdictions once under theVRA had closed 20% more of their polling places than the national average. TheLeadership Conference on Civil & Human Rights found that 1,688polling places in 13 states had closed since Shelby County v. Holder—many instates that were formerly covered by the VRA. Texas alone has closed a shocking750 polling locations since the decision.

Things are likely to get worse before they get better, because nothing has been done to mitigate the impact of Shelby v. Holder, and more restrictive voting laws hit legislative chambers around the country every year. Congress has put forward more than one bill to reinstate the lost protections, but so far nothing has come to fruition, and based on the way the Senate is currently ignoring hundreds and hundreds of House-passed legislation, it probably won’t happen before 2020.

Check out the episode on YouTube!

Works Cited

• “1965 Alabama Literacy Test.” Alabama, Alabama, 1965.

• 50 Years of the Voting Rights Act. Joint Center for Political and Economic Studies, 2015, 50 Years of the Voting Rights Act.

• “The Civil Rights Act of 1964: A Long Struggle for Freedom Legal Timeline.” Legal Timeline - The Civil Rights Act of 1964: A Long Struggle for Freedom | Exhibitions - Library of Congress, 10 Oct. 2014, www.loc.gov/exhibits/civil-rights-act/legal-events-timeline.html.

• “Democracy Diverted: Polling Place Closures and the Right to Vote.” The Leadership Conference on Civil and Human Rights, civilrights.org/democracy-diverted/.

• “The Fifteenth Amendment.” A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875, memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=016%2Fllsl016.db&recNum=1166.

• “The Fourthteenth Amendment.” A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875, memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=015%2Fllsl015.db&recNum=739.

• “How We Can Restore the Voting Rights Act.” Brennan Center for Justice, www.brennancenter.org/our-work/research-reports/how-we-can-restore-voting-rights-act.

• Lockhart, P.R. “How Shelby County v. Holder Upended Voting Rights in America.” Vox, Vox, 25 June 2019, www.vox.com/policy-and-politics/2019/6/25/18701277/shelby-county-v-holder-anniversary-voting-rights-suppression-congress.

• McCann, Allison. “How the Gutting of the Voting Rights Act Led to Hundreds of Closed Polls.” VICE News, VICE News, 16 Oct. 2018, news.vice.com/en_us/article/kz58qx/how-the-gutting-of-the-voting-rights-act-led-to-closed-polls.

• “New Voting Restrictions in America.” Brennan Center for Justice, www.brennancenter.org/our-work/research-reports/new-voting-restrictions-america.

• Nilsen, Ella. “Democrats in Congress Are Getting Things Done. Trump and Republicans Are Just Ignoring Them.” Vox, Vox, 24 May 2019, www.vox.com/2019/5/24/18637163/trump-pelosi-democrats-bills-congress.

• Pilkington, Ed. “Texas Rushes Ahead with Voter ID Law after Supreme Court Decision.” The Guardian, Guardian News and Media, 25 June 2013, www.theguardian.com/world/2013/jun/25/texas-voter-id-supreme-court-decision.

• “Poll Taxes.” National Museum of American History, 3 May 2018, americanhistory.si.edu/democracy-exhibition/vote-voice/keeping-vote/state-rules-federal-rules/poll-taxes.

• “Shelby County, AL - Official Website: Official Website.” Shelby County, AL - Official Website | Official Website, www.shelbyal.com/.

• “Smith v. Allwright (1944) - White Primaries.” Texas Politics Project, texaspolitics.utexas.edu/archive/html/vce/features/0503_01/smith.html.

• Team, Content. “Shelby County v. Holder - Case Summary and Case Brief.” Legal Dictionary, 15 Nov. 2018, legaldictionary.net/shelby-county-v-holder/.

• Team, Content. “Shelby County v. Holder - Case Summary and Case Brief.” Legal Dictionary, 15 Nov. 2018, legaldictionary.net/shelby-county-v-holder/.

• United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT. SHELBY COUNTY, ALABAMA, APPELLANT v. ERIC H. HOLDER, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL., APPELLEES. 19 Jan. 2012.

• UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. SHELBY COUNTY, ALABAMA, Plaintiff, v. ERIC H. HOLDER, Jr., in His Official Capacity as Attorney General of the United States, Defendant. 21 Sept. 2011.

• United States, Congress, Public Law 89-110 Voting Rights Act of 1965. 1965. Eighty-Ninth Congress of the United States of America Congress.