The Voting Rights Act of 1965 is one of our nation’s most effective federal civil rights statutes. One of its most crucial components was upended in the 2013 Supreme Court case Shelby County vs. Holder.
In April 2010, Shelby County, Alabama filed a lawsuit seeking to invalidate Section 5 of the Voting Rights Act, which is widely regarded as the heart of the legislation. The NAACP Legal Defense Fund (LDF) intervened in the case on behalf of African-American residents of Shelby County whose voting rights were directly impacted by the county’s challenge.
In 2006, the City of Calera, which lies within Shelby County, enacted a discriminatory redistricting plan without complying with Section 5, leading to the loss of the city’s sole African-American councilman, Ernest Montgomery. In compliance with Section 5, however, Calera was required to draw a nondiscriminatory redistricting plan and conduct another election in which Mr. Montgomery regained his seat.
Shelby County asked the U.S. Supreme Court to take the case following a May 2012 ruling by a federal court that upheld the constitutionality of Section 5. In rejecting Shelby County’s challenge, Judge Tatel of the U.S. Court of Appeals for the District of Columbia Circuit, writing for the majority, ruled that Congress appropriately extended the protections of the preclearance requirement in 2006 for 25 more years: “After thoroughly scrutinizing the record and given that overt racial discrimination persists in covered jurisdictions notwithstanding decades of section 5 preclearance, we, like the district court, are satisfied that Congress’s judgment deserves judicial deference.”
The lawsuit challenging Section 5 was filed by Shelby County less than one year after LDF successfully defended its constitutionality before the Supreme Court in Northwest Austin Municipal Utility District Number One v. Holder. LDF intervened to, once again, defend the Voting Rights Act.
Since the Shelby County v. Holder decision in 2013, states and jurisdictions have been free to implement changes in voting and redistricting without the preclearance process to determine whether those changes are discriminatory against minorities. Eight years later, we are only now beginning to see the ramifications of the decision. Now lawmakers across the nation are pushing through a barrage of sweeping voter suppression bills. These severe restrictions on voting undoubtedly impact voters of color the most. So far 389 restrictive voting bills in 48 states have been introduced since the 2020 election. 22 have already been enacted. Had the preclearance process been in place, these bills would have been stopped before ever becoming law.
We arrived at this unprecedented moment, facing voter suppression bills that harken back to Jim Crow, because of Shelby v. Holder. Now Congress has the power to act.
For nearly 50 years, Section 5 of the Voting Rights Act (VRA) required certain jurisdictions (including states, counties, cities, and towns) with a history of chronic racial discrimination in voting to submit all proposed voting changes to the U.S. Department of Justice (U.S. DOJ) or a federal court in Washington, D.C. for preapproval. This requirement is commonly known as “preclearance.”
Section 5 preclearance served as our democracy’s vital checkpoint that could halt discriminatory voting changes before they were implemented. It protected Black, Latinx, Asian, Native American, and Alaskan Native voters from racial discrimination in voting in the states and localities—mostly in the South— with the worst histories of racial discrimination in voting and redistricting. Since Shelby v. Holder dismantled Section 5, many of these states and jurisdictions can attempt to pass discriminatory voting policies that erode the rights of voters of color, and we are left without federal oversight.
The 2021 redistricting cycle will be the first without Section 5 of the Voting Rights Act in place to protect against discriminatory redistricting. By preventing discriminatory voting practices from going into effect, Section 5 blocked discriminatory redistricting plans, as well as myriad other discriminatory schemes, before their implementation. Because the Supreme Court immobilized these protections, the Shelby County ruling has had, and will continue to have, immense ramifications on redistricting and voting laws post-2020. Now, only a few jurisdictions that are covered by court orders are required to preclear their proposed redistricting plans and other voting laws. Without Section 5 and the pre-approval process in place, jurisdictions that were notorious for their racial discrimination in voting policies can attempt to pass discriminatory redistricting policies following the 2020 Census, and we are left without federal oversight.
LDF, Asian Americans Advancing Justice | AAJC, and MALDEF released a new guide to educate and empower communities to take part in the 2021 redistricting process and fight for fair maps. Power on the Line(s): Making Redistricting Work for Us is a guide to familiarize you with what redistricting is all about, and to provide you with ways you can make sure your voice is heard in the redistricting process for the seats that affect you. The appendix to the guide explains how you can get involved in the redistricting process in your state.
LDF has closely monitored how formerly covered states and localities are responding to the Shelby County decision. In addition, LDF attorneys have engaged with communities of color across the nation that have been left vulnerable by the Supreme Court’s ruling to urge them to be their community’s eyes and ears, and to alert LDF of any potentially discriminatory voting changes. LDF attorneys have collectively traveled hundreds of thousands of miles to over a dozen states, holding community empowerment forums, meeting with community leaders and individuals, distributing literature, investigating complaints, meeting with election officials and elected representatives, and monitoring elections through our annual Prepared to Vote campaigns.
LDF periodically releases our report Democracy Diminished: State and Local Threats to Voting Post-Shelby County, Alabama v. Holder, detailing a running, and still growing, list of state, county, and local level responses to the decision, including jurisdictions’ intentions to implement new discriminatory voting changes in the wake of the decision. Read the latest as of June 22 2021 here.
Since the 2020 election, lawmakers in 48 states have introduced at least 389 bills that restrict access to voting. So far, at least 22 of these bills have been enacted. Georgia passed S.B. 202 in March, and since then lawmakers across the country have introduced similar voter suppression legislation. They are following the model set in Georgia – using false information to stoke fear in an otherwise secure electoral process. LDF swiftly filed a lawsuit challenging S.B. 202 in Georgia, followed by another lawsuit challenging S.B. 90 in Florida, two of the most severe anti-voting laws enacted. LDF also filed a lawsuit in August 2020 against the United States Postal Service (USPS) challenging policies enacted causing widespread mail delivery delays to ensure that ballots would be delivered in a timely manner.