Eight years ago on Friday, Chief Justice John Roberts blew up the U.S.’s hard-won voting rights protections.
Roberts issued the ruling for a five-vote Supreme Court majority in the Shelby County v. Holder case stating that the preclearance formula enacted in the historic Voting Rights Act of 1965 ― which required certain states to get federal approval for voting changes ― was no longer applicable. He reasoned the policy had been so successful at curbing discriminatory election practices that it was no longer justified.
He was wrong. The justices’ decision reverberates today as Republican-run states — freed from the preclearance provision of the Voting Rights Act and inspired by ex-President Donald Trump’s stolen election myth — enact increasingly bold new laws that make it harder for disproportionately Democratic communities to vote and easier for partisan Republicans to subvert elections by purging local elections officials and overturning results they don’t like.
“Shelby is the unfortunate precursor of all of these trash anti-voting, anti-democracy bills that we see proliferating in 47 of our 50 states right now,” said Nse Ufot, CEO of the New Georgia Project, a voter mobilization group based in Georgia.
The Voting Rights Act is one of the most important pieces of legislation in U.S. history, passed in the immediate wake of the racist violence of state and private actors against civil rights protesters. Activists marched from Selma to Montgomery, Alabama, to make real the 14th Amendment’s right to due process and the 15th Amendment’s prohibition on election discrimination based on race. This was when Alabama state troopers broke the skull of a young John Lewis — who would go on to serve as a Democratic congressman for Georgia for 33 years until his death in 2020 — as they beat marchers trying to cross the Edmund Pettus Bridge. Voting rights activists Jimmie Lee Jackson, James Reeb and Viola Liuzzo were murdered in separate incidents.
The Voting Rights Act’s preclearance authority required certain jurisdictions with a pattern and history of enacting discriminatory election practices to submit changes to election laws, rules and practices for review by the Department of Justice ahead of time.
The Supreme Court upheld the preclearance authority four times, in 1966, 1973, 1980 and 1999. But the appointments of justices Roberts and Samuel Alito in 2005 gave the court a five-vote conservative majority hostile to federal voting rights laws. When Congress renewed the Voting Rights Act in 2006, it did not update the preclearance formula, leaving an opening for opponents to argue it was out of date and no longer reflected voting on the ground.
That’s what Roberts wrote in his Shelby County v. Holder ruling.
“Coverage today is based on decades-old data and eradicated practices,” Roberts wrote. “The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”
In her dissent, the late Justice Ruth Bader Ginsburg characterized Roberts’ rationale for “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” as akin to “throwing away your umbrella in a rainstorm because you are not getting wet.”
While Roberts did not find the preclearance authority itself unconstitutional, his rejection of the preclearance formula, which provided a list of policies and actions that constituted discrimination, effectively neutered the authority, gutting the heart of the Voting Rights Act.
A wave of state laws making it harder to vote have swept the country since, including restrictive photo identification and proof of citizenship laws, reductions in early voting hours and the voter registration time period, closing over 1,500 polling places and expansive voter purges, among other things.
“For us, voter ID laws were not a huge problem before Shelby,” said Kat Calvin, founder and executive director of Spread The Vote, a nonprofit that helps voters obtain photo identification. “It is a huge reason why we exist.”
The first full election post-Shelby was 2016, which resulted in the narrow election of the openly racist Trump despite his losing the popular vote. Five years after Roberts’ decision, journalist Van R. Newkirk II declared in The Atlantic that “the decision has handed the country an era of renewed white racial hegemony.”
Shelby is the unfortunate precursor of all of these trash anti-voting, anti-democracy bills that we see proliferating in 47 of our 50 states right now. Nse Ufot, CEO of the New Georgia Project
Political actors like Trump resorted to violence to maintain that hegemony, just as those Alabama state troopers did back in 1965, when he pointed a mob at Congress on Jan. 6 to upend its counting of Electoral College votes. Trump’s lie that the election was stolen from him through a range of far-fetched conspiracies is what fueled the insurrection. Republicans have now used those lies and the violence of the insurrection as inspiration for the most egregious wave of post-Shelby voter suppression laws yet.
These new laws include the typical list of restrictions seen in other post-Shelby years like restrictive voter identification, limits on mail and early voting, prohibitions on policies easing voter access, and so on. More worrying are newer provisions allowing partisan ― in this case, Republican ― actors to purge local and county election supervisors without cause and to allow the legislature to overturn election results it doesn’t like.
Such provisions not only mirror Trump’s desired actions between his election loss and the insurrection, but also reek of Jim Crow-era efforts to purge Black people from politics.
In Georgia, where Republicans enacted a new voter suppression law, Black and Democratic election officials are being removed from office for no stated reason, likely to be replaced by Republicans, according to The New York Times. These officials are in charge of choosing polling locations, setting early voting hours, informing voters of those locations and hours, and certifying the election results.
The Justice Department announced a lawsuit against the state of Georgia over the law on Friday, saying the policies were put in place to violate the rights of voters. Attorney General Merrick Garland said Friday that the law likely wouldn’t have been put in place if the Voting Rights Act’s preclearance formula had still been effect.
“It’s an attack,” Ufot said. “It’s happening right now.”
Similar provisions aimed at stripping election officials of their authorities or purging local officials are under consideration in states like Arizona and Texas.
“It’s Jim Crow racist,” said Alex Gulotta, acting director of voting rights for All Voting Is Local, a project of the Leadership Conference on Civil and Human Rights. “It’s a slide back to a time in history when we in fact did not treat people equally around voting.”
Democrats in Congress are pursuing a few legislative pathways to address Republicans’ post-Shelby attacks on voting rights.
There is the For The People Act, a package of voting rights, campaign finance, redistricting and ethics reforms that was blocked by a Republican filibuster on the floor of the Senate on Tuesday. This bill would, among a number of things, overturn many state-level voter suppression laws by creating a mandatory floor for voter access in all 50 states.
A separate bill was introduced on Tuesday that would ban some of the partisan election subversion tactics implemented by Republicans in Georgia and now under consideration in Arizona and Texas. This bill is likely to be incorporated into a later version of the For The People Act and more legislation is expected to be released to counter election subversion in the near future.
And then there is the John Lewis Voting Rights Advancement Act, which would enact a new preclearance formula for the Voting Rights Act in response to the Shelby decision. The House is currently holding hearings to create a legislative record establishing the need for this new preclearance formula if the bill is passed and it is ultimately challenged before a hostile Supreme Court again. The House is likely to pass this bill in September.
The combination of these bills would invalidate many existing efforts to suppress the vote at the state level, override election provision efforts and reestablish the authority to review discriminatory legislation in the future.
But many obstacles stand in the way. The Supreme Court, for one, is set to rule any day on another challenge to the Voting Rights Act in Brnovich v. DNC. A ruling on this case from the now 6-3 conservative majority could further gut the act.
In Congress, there is effectively zero support from Republicans. Sen. Lisa Murkowski (R-Alaska) is a co-sponsor of the John Lewis voting bill, making her the only Republican who openly endorses any of these bills. The only way they will become law is if Senate Democrats change the chamber’s filibuster rules requiring 60 votes to advance a bill to a majority vote.
Instead, Republicans have embraced their party’s post-Shelby lurch against voting rights and democracy. In arguments against the For The People Act on Tuesday, Republican senators claimed that the federal government had no business interfering in state or local elections at all.
It’s a slide back to a time in history when we in fact did not treat people equally around voting. Alex Gulotta, Leadership Conference on Civil and Human Rights
“This is not a federal issue,” Senate Minority Leader Mitch McConnell (R-Ky.) said prior to his party filibustering the For The People Act. “It oughta be left to the states.”
Such an argument ignores both the text of the U.S. Constitution’s Elections Clause, which enables Congress to set election laws, and the 15th Amendment, which allows Congress to set election laws to enforce the amendment’s ban on race-based denial or restriction of the right to vote. It also mimics those arguments made by opponents of civil and voting rights from Reconstruction to the Voting Rights Act of 1965.
“The Republican leader uses the language and the logic of the Southern senators in the ’60s who defended state’s rights,” Senate Majority Leader Chuck Schumer (D-N.Y.) said on Tuesday.
This was the world that Roberts placed in the past when he declared in his Shelby County opinion that “our country has changed.” Eight years on, the removal of the Voting Rights Act’s preclearance formula has proven that, had the country “changed” by 2013, it has since reverted to long before then.