Deterrence and Democracy: Election Law After Preclearance

By Asma Husain
Associate Editor, Vol. 22

In 2013, Chief Justice Roberts delivered the Court’s opinion in Shelby County v. Holder, which struck down key provisions of the Voting Rights Act. Considered the crown jewel of the Civil Rights Movement, the Voting Rights Act had, until that decision, required covered jurisdictions to preclear changes to their election laws through either the Department of Justice or the District Court for the District of Columbia. The Court’s decision in Shelby County held that the preclearance formula was unconstitutional, and preclearance itself became a moot point. Almost immediately thereafter, several states implemented new election laws. Without the deterrent effect of Section 5 of the Voting Rights Act, 860 polling places in previously covered jurisdictions were closed within three years and new voter ID requirements proliferated. These changes, which would have had to be pre-approved under the VRA’s preclearance regime, could now be implemented without impediment. Although no reliable data yet exists comparing voter turnout and ballot accessibility in pre- and post-Shelby County presidential elections, what is clear is the message that striking down portions of the VRA sent.

What the majority and dissenters of the Shelby County court could not agree on was one central issue: was the Voting Rights Act still necessary in 2013 and beyond? Chief Justice Roberts stood firmly against the idea, stating that the coverage formula kept “the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.” Justice Ginsburg, in dissent, argued for the continued relevance of the preclearance formula. She boldly stated: “Throwing out preclearance 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.”

The opposing sides of the Court came at the question of Shelby County from two inconsistent viewpoints. The preclearance formula, which covered jurisdictions that had a documented history of race-based voting discrimination, scrutinized changes to those jurisdictions’ voting laws under the assumption that there was a danger of further discrimination going forward. The majority truncated the context of the issue to the present, and stated that because the VRA had effectively corrected for the egregious race-based disenfranchisement of the Jim Crow South, it had served its purpose. The dissent, on the other hand, took a long view of history and saw the preclearance formula as a deterrent against future efforts to suppress or dilute minority voting strength, providing a check on future discriminatory laws before they could go into practice. Ultimately, Chief Justice Roberts’ viewpoint prevailed, and the formula was declared unconstitutional. The message sent to the states and to voters was that jurisdictions that had historically engaged in race-based voter suppression no longer needed to be kept under the watchful eye of the federal government. That portion of the Voting Rights Act was no longer necessary.

However, just seven years earlier, the Senate had reaffirmed its belief that the Voting Rights Act was necessary. In 2006, by a vote of 98 to 0, the Senate reauthorized the Voting Rights Act in its entirety for a further twenty-five years. In fact, Congress had continually reauthorized the Voting Rights Act since its initial passage in 1965, renewing its provisions in 1970, 1975, and 1982. Although the Shelby County majority declared that the preclearance regime was no longer necessary, Congress, at least up until 2006, had vehemently disagreed.

Laws function to control behavior in a variety of ways, the least of which is not through their expressive function. By “making statements,” laws can shape what is deemed acceptable by society at large. The preclearance regime of the Voting Rights Act acted in a such a way, standing for the proposition that voting is a fundamental right, and denying it to others on the basis of race is simply unacceptable.

The loss of that simple declaration was felt almost immediately. Within a year of the Shelby County decision, “most of the feared consequences [had] come to pass – including attempts to: revive voting changes that were blocked as discriminatory, move forward with voting changes previously deterred, and implement new discriminatory voting restrictions.” Many states enacted more restrictive voting laws after 2013, including most jurisdictions that had previously been covered by the preclearance regime.

Would these new laws have been enacted had the preclearance regime remained in place? Perhaps. Some might well have survived federal scrutiny, although other changes may not have passed through state legislatures while preclearance stood as an obstacle. Certainly, the number of proposed election laws proliferated in the years after Shelby County. And while some of those changes have served to make voting more efficient, others have specifically targeted impoverished and minority voters.

When the Supreme Court looked at the preclearance regime and questioned its continued relevance, the majority asked whether the preclearance regime was actually serving to block discriminatory voting laws. They questioned the preclearance formula’s focus on historically discriminatory jurisdictions, and found that that section of the VRA had become disconnected from its historical raison d’être. But the action the preclearance regime was meant to stall returned in force immediately after it was struck down. The problem, which had begun to seem like a historical relic, is now revived. Shelby County, rather than declaring the decisive end of discriminatory election law, has given such discrimination new life.

In his 1975 testimony before Congress,  Modest Rodriquez said, “Democracy does not come easily and we are asking for your help in this matter.” Rodriguez sought to impress upon Congress the need for expanding the Voting Rights Act, and he was ultimately successful. But his cause was one of many steps, additions and amendments and ratifications that bolstered the VRA through its history. Although the Act still stands, its central deterrent effect no longer does, and once again democracy proves that it does not come easily.