By: Ben Denker
Volume X – Issue I – Fall 2024
I. INTRODUCTION
Since the 2020 election, Donald Trump’s repeated claims of election fraud have sown widespread doubt and concern about the integrity of U.S. elections. Indeed, polls show that up to a third of Americans believe President Biden was illegitimately elected. [1] These fears have led to an increase in support for voter ID requirements. Five states have enacted laws requesting some form of voter ID on election day: Ohio, Nebraska, Missouri, Arkansas, and North Carolina, bringing the total to 36 states. Different states have different forms of accepted IDs—Ohio only accepts driver's licenses or passports, while other states like North Carolina also accept Student IDs and military cards. [2] This increase in voter ID requirements post-2020 does not exist in a vacuum. Indeed, attempts to adjust election procedures in the name of election integrity have a deeper history necessary to contextualize recent efforts.
The Civil Rights movement in the mid-20th century helped mobilize the general public and politicians against Jim Crow laws, resulting in monumental legislation for voting rights. Among the most important legislation in ending the decades-long conquest for enfranchisement of black voters was the Voting Rights Act of 1965. Signed into law by President Lyndon B. Johnson, the legislation prohibited discriminatory voting restrictions and required states to gain federal approval before changing voting laws. [3]
This paper will focus on the 21st-century interpretations of Sections 4 and 5 of the Voting Rights Act of 1965. Section 5 stipulates that certain states and local governments must obtain federal preclearance—when the United States District Court for the District of Columbia or the Attorney General subjects voting alterations to review—before implementing changes to voting laws or practices. [4] Section 4 outlined the measures for determining which select jurisdictions require preclearance based on the jurisdiction’s history of racial discrimination in voting. [5] Before the Shelby County v. Holder (2013) decision Arizona, Alaska, Texas, Louisiana, Alabama, Mississippi, Georgia, and South Carolina and select jurisdictions in various other states were mandated to receive preclearance under Section 4.
Specifically, this paper will examine the statutes through the consequences of Shelby County v. Holder, a landmark Supreme Court decision. In a 5-4 decision along ideological lines, the Court held that Section 4 of the Voter Rights Act of 1964 was unconstitutional. The opinion did not explicitly rule Section 5 as unconstitutional, but without the coverage formula stipulated in Section 4, Section 5 has no coverage and therefore cannot subject any state or jurisdiction to preclearance. As a result, states previously subject to preclearance could enact voting law changes without the approval of the District Court of the District of Columbia or the U.S. Attorney General. [6] Although the decision only directly impacted states previously subject to preclearance, the decision has emboldened state lawmakers nationwide to enact stricter voting laws which will be examined in this paper.
This paper will also analyze perhaps the most well-known consequence of Shelby County v. Holder—Veasey v. Abbott (2016). Although this ruling prohibited Texas from enacting more strict voter identification laws, several ongoing cases pose a risk of disenfranchisement. Ultimately, the analysis of the judges’ decision-making in Veasey v. Abbott will inform the examination of one important ongoing case in voting rights law—Berger v. North Carolina State Conference of the NAACP (2022). This lens will inform the argument of this paper: Shelby County v. Holder severely undermined protections for voters of color by enabling discriminatory laws to take hold, hampering equal access to voting.
II. SHELBY COUNTY v. HOLDER (2013)
i. The Case
Shelby County, a jurisdiction within the covered state of Alabama, challenged the constitutionality of Sections 4(b) and 5 of the Voting Rights Act. Both the District Court for D.C. and the Court of Appeals for the D.C. Circuit upheld the law, reasoning that the coverage formula adopted by Congress in 2006 was consistent with the need to protect the voting rights of minority voters. [7] After the affirming appellate court decision, Shelby County appealed to the Supreme Court.
Chief Justice John Roberts’ majority opinion delivered a transformational interpretation of Section 4 of the Voting Rights Act of 1964, reinforcing the principles of federalism. This decision marked a stark contrast to the Court’s precedent. Before the ruling, the Court historically upheld preclearance as an enforcement mechanism for the Voting Rights Act. In South Carolina v. Katzenbach, for instance, the Court held that preclearance requirements were constitutional under Section 2 of the 15th Amendment, which reads that Congress “shall have power to enforce this article by appropriate legislation.” [8] In other words, preclearance requirements enabled Congress to properly enforce the Voting Rights Act and its intention to remedy race-based voter restrictions. Chief Justice Roberts, citing South Carolina v. Katzenbach, reasoned that the “insidious and pervasive evil” of voting restrictions that necessitated federal oversight and preclearance at the time of the decision “no longer characterize” the present voting landscape. [9] By doing so, the Court set a new standard for future cases by emphasizing that laws addressing past injustices must reflect “current conditions.” Future cases challenging voting regulations now require contemporary evidence of discrimination to justify federal intervention, marking a shift toward federalist principles in voting rights law.
ii. The Consequences of Shelby County v. Holder
The Supreme Court’s ruling in Shelby County rested on the belief that the nation had changed since the Voting Rights Act was passed, and the formula used to subject certain states to preclearance was outdated. By invalidating Section 4(b), the Court rendered Section 5’s enforcement power obsolete, shifting future decisions about voting restrictions to lower courts, which now must assess these laws on a case-by-case basis. The lack of federal oversight motivated eager state legislatures to enact new voting laws. As a result, there have been 77 state-level challenges to voting rights laws in the 9 states previously covered under preclearance since the Shelby County decision. [10] The subsequent details will detail the changes to election laws as a whole, beyond just voter ID, to ensure a comprehensive understanding of the consequences of Shelby County.
In Georgia, one of the 9 states previously subject to preclearance, voter restrictions have tightened since the ruling. In 2021, the Republican-majority state legislature passed Senate Bill 202 which mandates ID requirements for mail-in voting. [11] North Carolina enacted similar restrictions, requiring in-person voters to present voter ID and mail-in voters to include a copy of their photo ID in their mail-in ballot envelope. [12] In addition to citizenship and voter ID laws, states also have altered the processes for returning ballots. The previously mentioned Senate Bill 202 in Georgia reduces the number of ballot drop-boxes in metro Atlanta, a predominantly Democratic voting block. [13]
It is important to note that these changes have come with their share of legal challenges. With no preclearance coverage, the federal government and outside voter rights groups rely on courts to identify potentially discriminatory voting legislation. [14] On this front, there has been some success. A federal judge in Georgia notably struck down part of Georgia Senate Bill 202, ruling that provisions that blocked providing voters waiting in lines with food and water and requiring voters to provide their birth date in absentee ballot envelopes. [15] However, in other cases, courts have ruled to keep restrictive voting laws in place. For instance, in August 2024, the Supreme Court granted a Republican National Committee request to reinstate Arizona’s proof of citizenship law along ideological lines. [16] Thus, precedent suggests that courts may apply ideologically-based standards in evaluating restrictive voting legislation without federal oversight, leaving the path forward for safeguarding voting rights dependent on ideological interpretation.
III. VEASEY v. ABBOTT (2018)
i. The Case
With the implementation of Senate Bill 14 (SB 14), Texas began requiring voters to present one of six forms of identification to vote, including a Texas driver’s license, a U.S. citizenship certificate, or a U.S. passport, among others. [17] Independent voter rights groups quickly assessed the law as the most restrictive voter ID law in the country, estimating that over 600,000 registered voters in Texas did not have an approved ID under the law. [18] Before reaching the Court of Appeals for the Fifth Circuit, a federal district court in the Southern District of Texas held that: 1. SB 14 creates an unconstitutional burden on the right to vote and has an impermissible discriminatory effect against Hispanics and African Americans, and 2. was imposed with an unconstitutional discriminatory purpose. [19]
The state appealed this final judgment to the Court of Appeals for the Fifth Circuit. In its ruling, the Court addressed two important legal issues in the post-Shelby legal arena: Texas voter ID law SB 14, violated Section 2 of the Voting Rights Act of 1964 and whether there was discriminatory intent in the law. [20] The Court remanded the latter issue to the District Court, reasoning that the evidence of discriminatory intent should be re-evaluated. [21] For the former issue, the Court reasoned that the law violated the Voting Rights Act of 1964, focusing on the significant and disparate burdens the law imposed on minority voters. [22] Disparate impact refers to a practice that disproportionately affects one group relative to another even if the formal laws are neutral. [23] In this case, although Texas’ SB 14 requirement for voter ID is uniform across groups, it was clear that due to the history of discrimination against African Americans and its resulting systemic socioeconomic inequalities, African Americans had fewer opportunities to participate in the political process because of the disproportionate difficulty of voting under the proposed law. [24] This focus on the SB 14’s immediate disparate effects on voting accessibility is what drove the Fifth Circuit to uphold Shelby’s “current conditions” principle that voting laws must be assessed based on present burdens on affected groups.
ii. The Implications of Veasey for Berger v. North Carolina State Conference of the NAACP
Although many voting rights cases rely on ideological interpretations of what constitutes acceptable government intervention in voting rights laws, one consistent legal standard is disparate impact. This standard informed the majority opinion in Veasey v. Abbott. The Court detailed that to establish disparate impact under the Voting Rights Act, it is not necessary to prove discriminatory intent behind a law. [25] Instead, the focus is on the law’s effects. Specifically, SB 14’s voter ID requirement was facially neutral, meaning it applied equally to all voters. There was no discriminatory intent in this case. However, the Court reasoned that due to a long history of racial discrimination in Texas, African Americans and other minority voters were less likely to possess the types of identification required by SB 14. The Texas government had presented insufficient evidence to demonstrate a widespread voter fraud issue necessitating such strict ID requirements. [26] In other words, the burdens SB 14 placed on minority voters were not justified by a significant state interest.
In the ongoing case Berger v. North Carolina State Conference of the NAACP, a district court is expected to issue its ruling on whether a North Carolina voter ID law violates Section 2 of the Voting Rights Act and the 14th and 15th Amendments of the U.S. Constitution. The case previously reached the Supreme Court on a separate issue—whether state officials can intervene in a case regarding the constitutionality of state laws. The North Carolina Attorney General, a Democrat, had long argued for the defendant, the state. Republican state officials, however, believed his defense was inadequate and requested to intervene and advocate for the voter ID law. The Supreme Court permitted the intervention, remanding the constitutional issue back to a district court.
Based on the precedent outlined in Veasey v. Abbott, the Court may rule in favor of the plaintiff, North Carolina State Conference of the NAACP. Focusing on the plaintiffs’ disparate impact argument, they contend that the North Carolina voter ID law facilitates discriminatory effects regardless of intent. [27] They outline four ways this occurs including the most striking piece of evidence: a disparity in ID possession by minority voters. [28] Black voters are twice as likely than white voters to lack a valid form of photo ID under the new law. Further, Latino voters are nearly three times more likely to lack qualifying ID than white voters. [29] Veasey v. Abbott outlined the standard used to evaluate whether this evidence constitutes a disparate burden. The approach involves two requirements: the challenged law must first “[impose] a discriminatory burden on members of a protected class” such that “members of the protected class ‘have less opportunity than other members of the electorate to participate in the political process . . .’”; and second, the discriminatory burden must be in part “caused by or linked to ‘historical conditions’ that have or currently produce discrimination against members of the protected class.” [30] The disparities in qualifying ID certainly fulfill the first standard, as minority voters have fewer opportunities to vote under the new law. Furthermore, North Carolina has a detailed history of racial discrimination stretching from slavery, through Jim Crow laws, and persisting in the present through systemic differences in socioeconomic and education status. [31] These conditions facilitate the discrimination necessary to fulfill the second criterion. Just as Shelby held that voting regulations/challenges must be supported by contemporary evidence of discrimination, the evidence of disproportionate ID possession among Black and Latino voters provides a concrete justification for challenging the law under the Voting Rights Act.
IV. CONCLUSION
The Supreme Court’s ruling in Shelby County v. Holder effectively dismantled preclearance, enabling states to pass new voting restrictions without federal approval. This shift has led to an increase in voter ID laws and other restrictive voting measures, often justified in the name of election integrity, but disproportionately affecting minority voters, as demonstrated in cases like Veasey v. Abbott and Berger v. North Carolina State Conference of the NAACP. The Court’s reliance on disparate impact analysis in Veasey v. Abbott underscores the importance of evaluating the effects of voting laws on marginalized communities. Even without explicit discriminatory intent, these laws can impose significant barriers for minority voters due to systemic inequalities rooted in historical discrimination. This precedent will shape future legal battles, such as Berger v. North Carolina State Conference of the NAACP, where an upcoming district court decision will shape the results of the 2026 and 2028 elections.
In evaluating future issues, the legacy of Shelby County v. Holder remains critical. Section 5 of the Voting Rights Act of 1964, deemed obsolete under Shelby, mandated preclearance for several states and jurisdictions with a rampant history of voter discrimination. Section 5, which enabled this federal oversight, is unique among other laws protecting against discrimination. In sections of Title VII [32] and the Americans with Disabilities Act, [33] the burden of proof rests on the affected individuals to bring a lawsuit to challenge a potentially discriminatory law—a costly and time-consuming process. Furthermore, a potentially discriminatory law can remain in effect until a ruling is issued. Under Section 5, however, jurisdictions used to have the burden of proving that a new law was not discriminatory. Shelby County v. Holder has fundamentally altered the voting rights law landscape. It significantly weakened protections for voters of color, shifting the costly and time-consuming burden of defending voting rights to citizens and advocacy groups. In a post-Shelby landscape, it is easier for discriminatory laws to take hold and harder to safeguard equal access to the ballot box.
Endnotes
[1] Pengelly, Martin. “More than a Third of US Adults Say Biden’s 2020 Victory Was Not Legitimate.” The Guardian, January 2, 2024. https://www.theguardian.com/us-news/2024/jan/02/poll-biden-2020-election-illegitimate.
[2] North Carolina General Assembly. 2017. Senate Bill 824: An Act to Implement the Voter Identification Constitutional Amendment. November 5, 2024. https://www.ncleg.net/Sessions/2017/Bills/Senate/HTML/S824v7.html.
[3] 52 U.S. Code § 10101. https://uscode.house.gov/view.xhtml?req=(title:52%20section:10101%20edition:prelim)
[4] 52 U.S. Code § 10101.
[5] 52 U.S. Code § 10101.
[6] Shelby County v. Holder, 570 U. S. 529 (2013)
[7] Shelby County v. Holder, 133 S. Ct. 2612. https://www.oyez.org/cases/2012/12-96.
[8] Shelby, 570 U. S. 529.
[9] Shelby, 570 U. S. 529.
[10] Cassidy, Christina A., and Ayanna Alexander. “Supreme Court Tossed out Heart of Voting Rights Act a Decade Ago, Prompting Wave of New Voting Rules.” AP News, June 21, 2023. https://apnews.com/article/voting-rights-act-supreme-court-black-voters-6f840911e360c44fd2e4947cc743baa2.
[11] Cassidy, Christina A. “GOP Targets Ballot Drop Boxes in Georgia, Florida, Elsewhere.” AP News, April 23, 2021. https://apnews.com/article/donald-trump-georgia-elections-coronavirus-pandemic-gubernatorial-elections-c083f5e0af7855c9dbb5a1659840c4a9.
[12] Alexander, Ayanna, Gary D. Robertson, and Christina A. Cassidy. “North Carolina Is among GOP States to Change Its Voting Rules. the Primary Will Be a Test.” AP News, March 2, 2024. https://apnews.com/article/voting-laws-voter-id-republicans-north-carolina-1c2d5b033620244a7ea5012adf669b30.
[13] Cassidy, “GOP Targets Ballot Drop Boxes.”
[14] Cassidy and Alexander, “Supreme Court Tossed out Heart of Voting Rights Act”
[15] “LDF’s Lawsuit Challenging Georgia’s Voter Suppression Law.” Legal Defense Fund, December 8, 2023. https://www.naacpldf.org/naacp-publications/ldf-blog/important-facts-about-ldfs-lawsuit-challenging-georgias-voter-suppression-bill/.
[16] Howe, Amy. “Justices Allow Arizona to Enforce Proof-of-Citizenship Law for 2024 Voter Registration.” SCOTUSblog, August 22, 2024.
[17] S.B. 14, 88th Legislature (2011) (Tex.).
[18] “Texas NAACP v. Steen (Consolidated with Veasey v. Abbott).” Brennan Center for Justice, September 21, 2018. https://www.brennancenter.org/our-work/court-cases/texas-naacp-v-steen-consolidated-veasey-v-abbott.
[19] Veasey v. Abbott, 197 L. Ed. 2d 78
[20] Veasey v. Abbott, 137 S. Ct. 612 (2017)
[21] Veasey, 137 S. Ct. 612.
[22] Veasey, 137 S. Ct. 612.
[23] U.S. Department of Justice, "Title VI Legal Manual," Civil Rights Division, November 5, 2024, https://www.justice.gov/crt/fcs/T6Manual7.
[24] Veasey, 137 S. Ct. 612.
[25] Veasey, 137 S. Ct. 612.
[26] Veasey, 137 S. Ct. 612.
[27] NAACP Plaintiffs’ Trial Brief, North Carolina State Conference of the NAACP v. Alan Hirsch, No. 1:18-cv- 01034-LCB-LPA (M.D.N.C., April 16, 2024), https://www.democracydocket.com/wp-content/uploads/2021/06/270-2024-04-16-NAACP-plaintiffs-trial-brief.pdf.
[28] NAACP Plaintiffs’ Trial Brief, N.C. State Conf. of the NAACP v. Alan Hirsch.
[29] NAACP Plaintiffs’ Trial Brief, N.C. State Conf. of the NAACP v. Alan Hirsch.
[30] NAACP Plaintiffs’ Trial Brief, N.C. State Conf. of the NAACP v. Alan Hirsch.
[31] Triplett, Nicholas P., and James E. Ford. Rep. E(Race)Ing Inequities. Center for Racial Equity in Education, 2019. https://www.ednc.org/wp-content/uploads/2019/08/EducationNC_Eraceing-Inequities.pdf.
[32] 52 U.S. Code § 10101.
[33] 52 U.S. Code § 10101.