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An Umbrella in a Rainstorm: Shelby County and the struggle over voting rights

There has been much talk about “rigged” elections this election cycle. But contrary to the highly coached popular belief,  voter fraud in the traditional sense is actually a very rare problem in the American system. That of course does not mean there are no problems. Voter suppression is the most common way of attempting to impact an election, and the Supreme Court made that much easier in 2013. The 2016 presidential election is the first after Shelby County v. Holder gutted an important part of the 1965 Voting Rights Act.

The Voting Rights Act followed soon on the heels of the 1964 Civil Rights Act. It was intended to remove obstacles to African American voting that had been raised in the post-reformation Jim Crow era, primarily in the South. These barriers were technically race neutral, but were disparate both in their impact and their application. After the 15th amendment was ratified in 1870, all men formally had the right to vote, but in practice this was often made very difficult. Poll taxes and literacy tests, as well as downright voter intimidation and harassment, were all tactics used widely before the Voting Rights Act outlawed them all in one fell swoop.

In June 2013, the Supreme Court struck down part of the Voting Rights Act intended to keep states in line with the law. Section 5 of the VRA states that a certain subset of districts are not allowed to enact changes to their election procedures without having them tried by a federal court ahead of time. These districts were identified by their status as having had voting restrictions in place prior to the VRA, as well as voter turnout below 50 %. Basically, districts with a history of discriminatory behavior needed to have their new procedures screened for discriminatory intent before they go into effect. In Shelby County v. Holder, the Court held that this preclearance was unconstitutional as it overextended Congress’s power over the states. Justice Ruth Bader Ginsburg dissented, writing memorably that “throwing out preclearance [the Section Four formula] when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Congressman and civil rights hero John Lewis said that the ruling “stuck a dagger into the heart of the Voting Rights Act”.

This may not sound like a big deal. After all, discriminatory election laws are still illegal, and will be struck down by one court or another eventually. But the problem is that court cases take a long time, and elections happen whether or not there is a challenge to the current laws taking place. One alteration of the laws may, regardless of whether it is determined to be discriminatory by a court later, severely impact the outcome of an election.

Perhaps attempting to prove this very point, Texas announced a mere three hours after the Shelby County decision that they would implement a Voter ID law previously blocked under Section 5. This law was approximated to disenfranchise between 600 000-800 000 voters, over 300 000 of whom were Latino. Similarly strict Voter ID laws quickly popped up in North Carolina, Alabama and Mississippi. The Brennan Center found in a 2006 study that 21 million Americans do not have the documents required by these laws, and that they tend to be disproportionately poor, elderly, and minorities.

At the same time, as a consequence of the Shelby County ruling, the Justice Department will be sending out fewer federal election monitors than most years since the passing of the Voting Rights Act. With the removal of Section 5, they no longer feel they have the jurisdiction to monitor specific districts more in-depth to avoid voter intimidation tactics. Combined with certain presidential hopefuls recently encouraging their voters to “go around and watch other polling places”, this has stoked some fears that discriminatory tactics and illegal electioneering will go unchallenged.

The potential political consequence of these new laws might seem obvious, but here it is anyway: the people who are denied the vote are overwhelmingly Democrats. Whenever there is a loss of turnout, the Democratic Party is the one that suffers. For instance, Democrats always perform more poorly in midterm elections, when turnout is lower because of the lack of a presidential race at the top of the ticket.

The South is in an interesting place electorally this year. Ever since the passage of the Civil Rights Act in 1964, the South has been a solidly Republican domain, carried to victory by a massive percentage of the white vote. But some Southern states have been turning in recent years. Virginia, once a bulwark of the Jim Crow South, went for Obama in both 2008 and 2012, and now appears solidly in Hillary Clinton’s column. North Carolina is a proper swing state now, being won and lost by minuscule margins by Obama in 2008 and 2012, respectively.

Many minority voters were first brought into the process by their enthusiasm for Obama in 2008. The best predictor for future voter behavior is generally previous voting behavior, which means that Obama voters are now more likely to vote again. For that reason, the current suppression of minority votes in the South may have devastating consequences for the Obama coalition at a crucial time. Whether or not those voters continue to vote in their second or third election may determine whether or not they will become habitual voters for the rest of their lives.

Voting rights advocates are fighting back, though. Many of the new laws are currently being challenged in court, and activists are working to overcome the new challenges through mobilization and Get Out the Vote efforts. It also seems that voting rights might be one of President Obama’s foci when he leaves office. As president, he’s repeatedly attempted to push Congress to renew the Voting Rights Act. Perhaps he will have more success as a community organizer. After all, he has some experience in the field.

Klara Fredriksson

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