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The Rise of Modern Voter Suppression:

Shelby County v. Holder, 570 U.S. ___ (2013).

In honor of Black History Month, all month long we will be sharing the legacies and stories of the heroes, sheroes, and events in the fight for Black suffrage on social media under the hashtag #VRABlackHistory. Follow us on Twitter (@VRAmatters) to share your own facts.

Today we are educating about the rise of modern voter suppression. Our focus will be on the United State's Supreme Court's 2013 decision of Shelby County v. Holder, 570 U.S. ___ (2013), which ruled Section 4(b) of the Voting Rights Act of 1965 (VRA) unconstitutional. As is outlined below, the Court ruling Section 4(b) of the VRA, which set the coverage formula for Section 5 of the VRA (the preclearance section), unconstitutional effectively gutted Section 5 of the VRA.

Although our focus today will be on Shelby County v. Holder, it would be remiss of us not to make of utmost clarity that voter suppression did NOT begin in 2013 after the Shelby County v. Holder decision. Voter suppression comes in many forms. Some would characterize felon disenfranchisement, the disenfranchisement of those with past felony convictions, which played a role in the 2000 presidential elections, as voter suppression. Voter suppression is also more subtle realities that occur around election time, such as flyers that tell one party to vote on a day other than election day or flyers that tell people they can "vote-by-phone" or "vote-by-email". These voter suppression tactics are known as "deceptive practices", and were even present in the 2008 elections.

Click on the video below to watch as Barbara Arnwine talks on MSNBC in 2008 about protecting the vote and the effort of Election Protection to make the vote count across the nation in the face of deceptive practices. (the author apologizes in advance for the poor video quality)
Voter suppression tactics really began to take hold after the 2010 mid-term elections, 2 years following the historic election of President Obama. Legislatures across the nation began implementing restrictive voting laws, including burdensome voter ID laws, which would disenfranchise 25 million people- even though those same people were able to and did vote in 2008.

Click on the video below to watch as Barbara Arnwine, then-executive director of the Lawyers' Committee for Civil Rights Under Law, was a speaker at the Children's Defense Fund National Conference in Cincinnati, Ohio on July 24, 2012. As part of the "Saving Democracy: Creating One America" plenary session, Arnwine told participants that American democracy is in deep crisis. She presented her 2011 "Map of Shame: Voter Suppression Legislation by State" to the 3,000 plus advocates, organizers, researchers, and young leaders in the room, urging each and every person to register everyone they know to vote, ensure every vote counts, and make everyone they know a VIP of voting -- Verify registration, have required Identification card, and know your Precinct. 

Background of Shelby County v. Holder

To truly understand the significance of Shelby County v. Holder, one must first understand the laws that were used to advocate for and against Section 4(b) of the VRA.

"The Fourteenth Amendment protects every person's right to due process of law. The Fifteenth Amendment protects citizens from having their right to vote abridged or denied due to 'race, color, or previous condition of servitude.' The Tenth Amendment reserves all rights not expressly granted to the federal government to the individual states. Article Four of the Constitution guarantees the right of self-government for each state."

As discussed before in our #VRABlackHistory article regarding the Voting Rights Act of 1965::

"'The most important permanent provisions [of the Voting Rights Act] are Section 2, which bans racial discrimination in voting nationwide, and Sections 4 and 201, which ban literacy tests nationwide. [An] important temporary [provision]...[is]:

  • Section 5, which requires certain state and local governments (called 'covered jurisdictions') to 'preclear' proposed changes in voting or election procedures with either the U.S. Department of Justice or the U.S. District Court for the District of Columbia [which the 2013 Supreme Court decision Shelby v. Holder sadly changed]...

The Voting Rights Act set up these powerful provisions to give African Americans the rights and the legal tools to combat and overcome the disempowering voter restrictions.  'Initially, these provisions applied to every Deep South state except Florida, plus Virginia and some 40 counties in North Carolina.'"  (emphasis in original)

Section 5 of the VRA was a 5-year temporary revision that "prohibit[ed] eligible districts from enacting changes to their election laws and procedures without gaining official authorization". This federal authorization that must be obtained by the covered states is known as "preclearance". Section 4 of the VRA did more than just ban literacy tests nationwide: it also contained several subsections. Section 4(b) "define[d] the eligible districts as ones that had a voting test in place as of November 1, 1964 and less than 50% turnout for the 1964 presidential election. Such districts [had to] prove to the Attorney General or a three-judge panel of a Washington, D.C. district court that the change 'neither has the purpose nor will have the effect' of negatively impacting any individual's right to vote based on race or minority status."

"In 1970, Congress recognized the continuing need for the special provisions of the Voting Rights Act, which were due to expire that year, and renewed them for another five years. It also adopted an additional coverage formula, identical to the original formula except that it referenced November 1968 as the date to determine if there was a test or device, levels of voter registration, and electoral participation. This additional formula resulted in the partial coverage of ten states.

In 1975, the special provisions of the Voting Rights Act were extended for another seven years, and were broadened to address voting discrimination against members of "language minority groups." An additional coverage formula was enacted, based on the presence of tests or devices and levels of voter registration and participation as of November 1972. In addition, the 1965 definition of "test or device" was expanded to include the practice of providing election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age. This third formula had the effect of covering Alaska, Arizona, and Texas in their entirety, and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota.

In 1982, Congress extended Section 5 for 25 years, but no new Section 5 coverage formula was adopted. Congress did, however, modify the procedure for a jurisdiction to terminate coverage under the special provisions. In 2006, Congress extended the requirements of Section 5 for an additional 25 years."

Shelby County's Attacks on Section 5 of the VRA

In April 2010, Shelby County, Alabama filed suit asking a federal court in Washington, DC" for "both a declaratory judgement that Section 5 and Section 4(b) are unconstitutional and a permanent injunction against their enforcement." "In September 2011, the U.S. District Court for the District of Columbia upheld the constitutionality of Section 5 of the Voting Rights Act" and "granted summary judgment for the Attorney General". "In May 2012, the U.S. Court of Appeals for the District of Columbia Circuit agreed with the district court that Section 5 was constitutional", and "held that Congress did not exceed its powers by reauthorizing Section 5 and that Section 4(b) is still relevant to the issue of voting discrimination."

"Shelby County appealed the ruling to the Supreme Court, and the Supreme Court agreed to take the case in November 2012."

Shelby County v. Holder Decision

On June 25, 2013, A 5-4 Supreme Court reversed, finding Section 4 unconstitutional [and that its] formula may not be used to require preclearance. The Court found that:

  •  States have broad autonomy in structuring their governments and pursuing legislative objectives;

  • The Tenth Amendment reserves to states "the power to regulate elections";

  • There is a “fundamental principle of equal sovereignty” among the states.

The Court reasoned that: "the Voting Rights Act departs from those principles [listed above] by requiring states to request federal permission to implement laws that they would otherwise have the right to enact and execute. The Act applies to only nine states (and additional counties). In 1966, the departures were justified by racial discrimination that had 'infected the electoral process in parts of our country for nearly a century' so that the coverage formula was rational in practice and theory. Nearly 50 years later, 'things have changed dramatically.' Voter turnout and registration rates in covered jurisdictions approach parity; blatantly discriminatory evasions of federal decrees are rare. Minority candidates hold office at unprecedented levels. Congress, if it is to continue to divide the states, must identify jurisdictions to be singled out on a basis that makes sense under current conditions. Data compiled by Congress before reauthorizing the Act did not show anything like the pervasive, rampant discrimination found in covered jurisdictions in 1965. Congress reenacted the formula based on 40-year-old facts with no logical relation to the present day."

Chief Justice John G. Roberts, Jr. delivered the opinion of the 5-4 majority, with Justice Clarence Thomas writing a concurring opinion, and Justice Ruth Bader Ginsburg writing a dissent that was joined by Justice Stephen G. Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan.

Justice Thomas' concurring opinion argued that Section 5 of the VRA is also unconstitutional, which is the same thing Justice Thomas wrote in the 2009 Namenda v. Holder. 

"Justice Ruth Bader Ginsburg, in a strongly worded dissent that she recited from for ten minutes during the Court session, argued that 'the Court errs egregiously by overriding Congress’ decision' in 2006 to extend the law for another twenty-five years (a renewal that was enacted without updating the coverage formula).  Ginsburg wrote that the decision 'strik[es] at the heart of the nation’s signal piece of civil-rights legislation'" and "that destroying preclearance is like 'throwing away your umbrella in a rainstorm because you are not getting wet.'"

In her dissent, "[s]he argued that Congress' power to enforce the Fourteenth and Fifteenth Amendments encompasses legislative action such as the Voting Rights Act. The legislative history and text of the Amendments as well as previous judicial precedent support Congress' authority to enact legislation that specifically targets potential state abuses. However, Congress does not have unlimited authority but must show that the means taken rationally advance a legitimate objective, as is the case with the Voting Rights Act. The evidence Congress gathered to determine whether to renew the Voting Rights Act sufficiently proved that there was still a current need to justify the burdens placed on the states in question. She also argued that, by holding Section 4 unconstitutional, the majority's opinion makes it impossible to effectively enforce Section 5."

Commentary and a Post-Shelby County Era

Concerning the oral arguments in Shelby County v. Holder:

"Chief Justice Roberts, Justice Scalia, and Justice Alito gave no indication that they might uphold Section 5". Justices Sotomayor, Kagan, and Ginsburg gave no indication that they had any problem with Section 5. "Justice Kennedy was generally skeptical of Section 5’s constitutionality, but had a question or two that suggests he is perhaps not as skeptical as the other conservatives; Justice Breyer seemed generally supportive of Section 5’s constitutionality, but he had some moments where he certainly evinced more skepticism than the other liberals.   I’ll also note that Justice Kennedy seemed to become more skeptical of Section 5 as the argument went on – and so did Justice Breyer."

"Justice Scalia bluntly noted – twice – that Congress is very unlikely ever to do anything but reauthorize Section 5, since politically there is no reason now to vote against it and every reason to vote in favor of it.

In making this point, Justice Scalia used the phrase 'racial entitlement' to describe one reason why a statute like this will never be allowed to expire.  Justice Sotomayor apparently took offense at this phrase, and expressed that to Justice Scalia by asking the plaintiff’s counsel, on rebuttal, whether he thought the right to vote was a racial entitlement – suggesting, that is, that this was Justice Scalia’s position."

It seems it is no coincidence that the attacks on the Voting Rights Act of 1965 happened after the historic 2008 election of President Barack Obama. Many believed after his election that we were in a "post-racial" period and that racism - including racial discrimination in voting- were a thing of the past. The Shelby County v. Holder opinion reflects that sentiment. It was well stated that it was because of Section 4(b) and Section 5 of the VRA that the nine covered states had improved voter turnout.

"Shelby County v. Holder is a consequential holding. The decision terminates the most successful and salient piece of civil rights legislation in American history. This is the law that ended the rampant race-based disenfranchisement that defined the Jim Crow South, and it is the law that has repeatedly enabled minority voters to cast ballots and elect representatives of choice in places where they otherwise would not have been able to do so.

The regime Shelby County shuts down has recently blocked a host of fresh discriminatory electoral practices. Just last summer [the summer of 2012], it kept Texas from implementing discriminatory redistricting plans and a deeply problematic voter ID measure. Last fall [the fall of 2012], the regime helped reshape South Carolina’s voter ID requirement to lessen the burdens it posed to minority voters.  That case prompted a U.S. District Judge, John Bates, to observe the statute’s 'continuing utility in deterring problematic' voting changes."

Without Section 4(b) and Section 5 of the VRA, the previously covered states have began, en masse and with haste, changing their voting requirements and gerrymandering their districts. The Shelby County decision also had several flaws, including its failure to recognize the new wave of voter suppression litigation that had started in 2011. The decision also downplayed the extensive legislative action taken by Congress when they re-authorized the VRA:

“From October 2005 through May 2006, the House Judiciary Committee held ten oversight hearings and two legislative hearings before the Subcommittee on the Constitution, at which it heard from 46 witnesses and assessed over 12,000 pages of testimony, documentary evidence, and statistical analyses.” Shelby County. v. Holder, 811 F. Supp. 2d 424, 435 (D.D.C. 2011).  “The result was ‘one of the most extensive legislative records in the Committee on the Judiciary’s history.’ Id. at 435.

The Subcommittee on the Constitution received and incorporated into the legislative record lengthy reports from several civil rights organizations and voting rights scholars, including: an ACLU report assessing 293 cases involving allegations of voting discrimination since 1982 and study conducted by Professor Ellen Katz and the Voting Rights Initiative of the University of Michigan Law School, which analyzed 323 post-1982 lawsuits that raised claims under Section 2 of the Voting Rights Act. Id. At 435. “The Senate Judiciary Committee held nine of its own hearings to discuss the reauthorization of the Act's temporary provisions, at which it, too, received testimony from 46 witnesses, including experienced civil rights litigators, law professors, and Department of Justice attorneys.” Id. at 435.

“All told, the legislative record compiled by the two houses is over 15,000 pages in length, and includes "statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination." Id. at 435. “The congressional support for the Act's 2006 reauthorization was even more ‘overwhelming’ than it had been for the Act's passage in 1965. Whereas the 1965 Act passed by a vote of 328 to 74 in the House and 79 to 18 in the Senate, the 2006 Amendments passed by a vote of 390 to 33 in the House and 98 to 0 in the Senate.” Id. at 436 (citations omitted).

No federal oversight is akin to the idiom "when the cat's away; the mice will play". Between 2015 and 2016, there were 56 cases concerning voter rights where people's right to vote was challenged. 2016 was the first presidential election without the protections of Section 5, and this election was also characterized by 868 less polling places, longer lines, and no oversight. Several voter ID laws have been struck down by courts in North Carolina and in Texas as being intentionally discriminatory.

"According to Civil Rights leader Barbara Arnwine, the right to vote remain[ed] under attack in 2016 by forces who still believe[d] the ballot should stay in the hands of a precious few.

The following [caused] millions of voters to be disenfranchised in the 2016 election:

  • Ending "preclearance" of the Voting Rights Act
  • Voter registration errors 
  • Draconian voter ID laws
  • Purging voter rolls
  • Caging lists
  • Felon disenfranchisement
  • Malfunctioning voting machines 
  • Problems with absentee ballots 
  • Undertrained poll workers 
  • Understaffed polling places 
  • Deceptive election practices
  • Ineffective planning 
  • Misallocation of resources and voting equipment 
  • Partisan election administration
  • Dirty tricks, robocalling and Election Day misinformation

According to the Institute for Southern Studies, an estimated 500,000 voters nationally didn't vote in 2012 because of problems at the polls, including long lines. Caltech/MIT reports 730,000 prospective voters were turned away due to long lines alone.

There is also a financial cost to suppressing the vote:

According to a Census Bureau report, with 23 million hours of waiting time in the 2012 elections, at an average hourly wage of $23.67, standing in line at the polls had a total economic cost of more than $544 million." (emphasis in original)

The civil rights community has been far from quiet about the recent rise in voter suppression tactics. The Reverend Jesse Jackson, John Lewis, and other civil rights leaders were in the balcony during the Selby County v. Holder oral arguments. They were also leading mass protests outside. There have been a number of congressional briefings, social media events, protests, and conferences aimed at bringing to light voter suppression, always with a call to "Restore the VRA" and "Protest Shelby". Many civil rights organizations, such as the Brennan Center, filed briefs during the Shelby County v. Holder proceedings. 

In the last 4 years, the civil rights community has been very active in fighting against voter suppression cases and has won significant cases in court, striking down voter suppression laws, but still the impact of voter suppression is widespread, and may have determined the outcome of the 2016 election. The Voting Rights Alliance, composed of over 20 organizations, was founded in early 2016 specifically to focus the  modern fight against voter suppression.

It was the Civil Rights Movement who was instrumental in the passing of the Voting Rights Act of 1965; and, it seems it will be the second-generation civil rights leaders who will continue the fight to preserve the legacy of those who fought and died for the right to vote.

Click on the video below to hear and see an audio slideshow examining a Texas town’s response to the Supreme Court’s decision in Shelby County v. Holder.
Reporting by: Caitlyn Cobb. 

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