In Shelby County v. Holder (2013), the Supreme Court of the United States notably struck down the preclearance regime of the Voting Rights Act of 1965, holding that the coverage formula determining preclearance was no longer needed given contemporary progress. This section of the Voting Rights Act applied to those states with histories of discrimination, requiring that they obtain approval from the federal government before making changes to their election laws. The states to which it applied were Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, along with parts of California, Florida, Michigan, New York, North Carolina, and South Dakota. This November will be the first presidential election in the aftermath of this controversial holding.
In the immediate aftermath of Shelby County v. Holder, many states took action on their state election laws. Indeed, shortly after the Court’s holding, having waited for the preclearance provision to be invalidated, the North Carolina state legislature passed legislation that imposed strict photo ID requirements, significantly cut back on early voting, and reduced the window for voter registration. Alabama likewise imposed a new strict photo ID requirement that would have required preclearance, and Mississippi moved to enforce its photo ID law which it had not been permitted to implement under the preclearance provisions of the VRA due at least in part to the difficulty of obtaining an acceptable form of ID. Moreover, the very day of the holding, Texas officials announced that they would implement the state’s strict photo ID law, a law that previously had not passed constitutional muster because of Section 5 of the VRA. While it would later be declared so strict as to be unconstitutional, many strict photo ID laws remain intact. Indeed, 34 states have laws requesting or requiring that voters show some form of identification at the polls, a requirement that disadvantages minorities and the poor.
It should come as no surprise that the states to which preclearance applied were largely concentrated in the South given the prevalence of Jim Crow policies ultimately struck down by Congress and the courts. Such states traditionally have tended to be strongly Republican (e.g., Mississippi, Louisiana, South Carolina, Alabama), with strongly Republican (Democratic) states typically not the locus of massive campaigning compared with battleground states such as Florida, Ohio, and Pennsylvania.
There are, of course, some states to which Shelby applies that have consistently been relevant, namely Virginia and North Carolina. But this is not only the first election in which the Voting Rights Act protections will hold, but the first election in which more of these applicable states will be competitive. Indeed, with polls in Texas, Georgia, and Arizona all dramatically narrowed, the campaigns are converging on these three states that typically have not been considered in the toss-up (or even lean) category in decades.
Indeed, Georgia has not voted for a Democrat since 1992 (and very narrowly at that), with more recent presidential elections won in the state by wide margins. Texas has not voted for a Democrat since 1976. The only time since 1948 that Arizona has voted for a Democrat is 1996. In each of these states currently, Secretary Clinton could conceivably win, with Texas being the longest shot among the three and Georgia the most likely.
Even absent competitive elections, the last couple of decades have continued to show instances of voter intimidation and suppression of minority voters in southern states and beyond. People for the American Way documented, for example:
- Louisiana (2002): Flyers distributed in African American communities informing them that they could alternatively go to the polls on the following Tuesday.
- South Carolina (1998): A state representative mailed 3,000 brochures to people in African American communities, claiming that law enforcement agents would be “working” the election and indicated that the election “is not worth going to jail.”
- South Carolina (1996): Considerable voter intimidation in Charleston County.
- South Carolina (1990): Charleston County election officials sought to prevent African American voters from seeking voting assistance.
- Michigan (2004): State representative quoted as saying, “If we do not suppress the Detroit vote, we’re going to have a tough time in this election.”
- Texas (2004): Students at predominantly African American university were erroneously told that they were not eligible to vote in the county, despite legal precedent applying to their case.
- Florida (2000): Numerous instances of voter intimidation, especially in immigrant communities.
- North Carolina (2000): Allegations of voter intimidation at the polls.
- North Carolina (1998): GOP officials in some counties planned to videotape people in heavily Democratic precincts, saying that it was to prevent voter fraud, though it was considered in violation of the Voting Rights Act.
- North Carolina (1990): The North Carolina Republican Party sent postcards to 125,000 voters, 97% of whom were African American, giving them false information about voter eligibility and warning them about criminal penalties for voter fraud.
- Alabama (1994): Under the guise of investigating church arson, FBI approached 1000 people and interrogated voters about potential fraud and demanded that many submit handwriting samples.
This is a mere sampling.
To be clear, the preclearance provisions apply not to incidental incidents of intimidation, but rather the procedures according to which elections formally are conducted, though it indicates that, contrary to the Court’s claims, the Jim Crow South is far from dead.
This election is contentious for a number of reasons. The Democratic nominee is the first woman to run in a major party, and has high unfavorable. The Republican nominee has stoked racist, homophobic, anti-Semitic, xenophobic, sexist, and violent rhetoric contributing to such cries as “lock her up,” and signs with Swastikas and racist and sexist epithets. This, coupled with anxieties around crime and policing, as well as Second Amendment rights being discussed at length, is in many ways the perfect storm. That the Voting Rights Act protections of Sections 4 and 5 overturned in Shelby County will not hold is hardly the source of conflict this election cycle, but it is probably adding fuel to the fire.
What is worth noting is that the various irregularities that were identified were not necessarily in regions with competitive races – indeed, most were not. The concern, of course, is that with heavy campaigning absent voting rights protections, we might feel the effects of Shelby County v. Holder all the more acutely than whatever treatment effect we might observe if her expansion of the voting base were in (more predominantly white) heartland states to which preclearance provisions did not apply.
While there is the normative desirability of voter participation, there is the reality that some states are not competitive, and with the Electoral College, there is not as much need to battle to win states such as Alabama and Mississippi (or on the other end of the spectrum, Massachusetts and Connecticut), which reliably vote for the same party every year. Secretary Clinton is showing a growing base of support in the South and southwest in such states as Georgia, Texas, and Arizona, regions that have the history of discrimination against which the Voting Rights Act had been working to guard. What remains to be seen is whether the increased need to fight for every vote in these southern and southwestern states yields changes to their voting rights landscape that have lasting adverse consequences for minorities’ political participation.