One Step Forward, Two Steps Backward: How the Supreme Court’s Decision in Shelby County v. Holder Eviscerated the Voting Rights Act and What Civil Rights Advocates Should Do about It
TOURO LAW JOURNAL OF RACE
ONE STEP FORWARD, TWO STEPS BACKWARD: HOW THE SUPREME COURT'S DECISION IN SHELBY COUNTY V. HOLDER
PAMELA EDWARDS The Voting Rights Act,1 enacted in 1965 and renewed as late as 2006 after several previous renewals, prohibits state governmental practices that impermissibly interfere with protected classes of individuals' ability to vote based on race and color.2 In the name of federalism, the Supreme Court in Shelby County v. Holder3 declared Section 4 of the VRA unconstitutional. Section 4, containing the “preclearance coverage” formula, was applied to determine which states and political subdivisions had to have changes in their voting laws pre-approved by the federal government. The section provided, in pertinent part: To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under the first two sentences of subsection (b) of this section or in any political subdivision of such State (as such subdivision existed on the date such determinations were made with respect to such State), though such determinations were not made with respect to such subdivision as a separate unit, or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia issues a declaratory judgment under this section. No citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under the third sentence of subsection (b) of this section or in any political subdivision of such State (as such
RIGHTS ADVOCATES SHOULD DO ABOUT IT
subdivision existed on the date such determinations were made with
respect to such State), though such determinations were not made with
respect to such subdivision as a separate unit, or in any political
subdivision with respect to which such determinations have been made
as a separate unit, unless the United States District Court for the
District of Columbia issues a declaratory judgment under this section.
A declaratory judgment under this section shall issue only if such court
determines that during the ten years preceding the filing of the action,
and during the pendency of such
action-(A) no such test or device has been used within such State or political
subdivision for the purpose or with the effect of denying or abridging
the right to vote on account of race or color or (in the case of a State or
subdivision seeking a declaratory judgment under the second sentence
of this subsection) in contravention of the guarantees of subsection
(f)(2) of this section.4
In part, the Supreme Court’s rationale in Shelby County5 was grounded on
the theory that the covered jurisdictions had ceased engaging in practices that
violated the voting rights of people of color, ignoring the fact that the reason these
jurisdictions ceased engaging in these practices was the VRA and the Justice
Department’s oversight. According to the majority opinion written by Chief Justice
There is no denying, however, that the conditions that originally
justified these measures no longer characterize voting in the covered
jurisdictions. By 2009, the racial gap in voter registration and turnout
[was] lower in the States originally covered by § 5 than it [was]
The majority took Congress to task for failing to incorporate a method of
determining if a state was currently discriminating against voters of color, instead
of relying on historic data when renewing the VRA. However, as Justice Ginsburg
wrote in her dissent, "The sad irony of today’s decision lies in its utter failure to
grasp why the VRA has proven effective. . . . The Court appears to believe that the
VRA’s success in eliminating the specific devices extant in 1965 means that
preclearance is no longer needed." Justice Ginsburg’s opinion further notes that the
4 Suspension of the use of tests or devices in determining eligibility to vote, 42 U.S.C. §1973(b).
5 Shelby Cnty v. Holder, 133 S.Ct. 2612 (2013).
6 Id. at 2618-19.
majority used a stricter basis than the “rational basis test” to reach its conclusions
that Section 4 was unconstitutional without announcing the change.
These jurisdictions have quickly returned to practices that make it more
difficult for certain groups to vote. For example, Texas and North Carolina took
immediate steps to enact laws requiring voters to show particular forms of
identification in order to vote. Requiring voter identification is a historic method of
preventing people of color, the poor, students, and the elderly from voting.8 One of
the less violent ways to engage in voter suppression was to require identification.
Many people in my generation remember the stories of our parents and
grandparents discussing the humiliation they suffered when they went to the polls
in the South during the early years of the Civil Rights era. Poll watchers laughed
and sneered when they could not produce “proper” identification.
“Just two hours after the Supreme Court [issued its opinion that] reasoned
that discrimination is not rampant enough in Southern states to warrant restrictions
under the Voting Rights Act, Texas advanc[ed] a voter ID law and a redistricting
map blocked last year for discriminating against black and Latino residents.”9 The
Justice Department had previously prevented Texas from implementing these laws
under Section 5.10 In North Carolina, a bill requiring voters to present one of several
forms of state-issued photo ID starting in 2016 had cleared the state House prior to
the Shelby County, but it had been sitting in the state Senate until the Shelby
County decision was issued.11
Studies have shown that many people do not have state issued
identification,12 including the aforementioned groups. One challenge facing civil
rights groups attempting to register voters so they can exercise their franchise is the
Supreme Court’s decision in Crawford v. Marion County Election Board, which
upheld the use of voter identification laws to prevent voter fraud, despite the burden
it places on certain segments of the voting population and despite the lack of
evidence of voter fraud in Indiana.13 The majority opinion does, however, leave room
for a challenge by voters who could provide evidence that their rights had been
impaired. 14 Civil rights groups should begin to compile this evidence if they have
9 Aviva Shen, Two Hours After The Supreme Court Gutted The Voting Rights Act, Texas AG Suppresses
Minority Voters, ThinkProgress.org (June 25, 2013),
11 Mathew Burns, NC Vote ID Bill Moving Ahead With Supreme Court Ruling, Wral.com (June 25, 2013),
12See, e.g., Crawford v. Marion County Election Board, 553 U.S. 181, 232, (2008). (Souter, J., dissenting).
13See, e.g., id. at 198-99.
not begun to do so already.
In some cases, states implemented such voter suppression practices as early
as 2011 according to the ACLU:
Over 30 states considered laws that would require voters to present
government-issued photo ID in order to vote. Studies suggest that up to
11 percent of American citizens lack such ID, and would be required to
navigate the administrative burdens to obtain it or forego the right to
Three additional states passed laws to require documentary proof of
citizenship in order to register to vote, though as many as 7 percent of
American citizens do not have such proof. Seven states shortened early
voting time frames, even though over 30 percent of all votes cast in the
2008 general election were cast before Election Day. Two state
legislatures voted to repeal Election Day registration laws, though
Election Day registration increases voter turnout by 10-12 percent.15
Attorney General Eric Holder has publicly reaffirmed “his commitment to
protecting people of color against elections discrimination and said not to view the
Supreme Court’s weakening of the Voting Rights Act ‘as a defeat for the cause of
voting rights, but as an opportunity to ensure that modern protections are adequate
to the challenges of the 21st century.’”16 With the current status of the VRA, it will
be difficult, however, for the Justice Department to prevent suppression of the vote
in communities of color. Civil rights groups will have to be proactive in ensuring that
their constituents can satisfy the new requirements. This will not be easy, however.
Because of past discrimination and segregation many people of color do not have
birth certificates, the most common document required to get identification cards in
many states. Elderly African Americans did not have access to hospitals when they
were born and the record keeping in segregated areas left much to be desired. If
there are other records that can be used to get birth certificates or used in lieu of
birth certificates in the individual states, such as birth records maintained in family
bibles, census records, doctor or midwife files, etc., civil rights organizations should
conduct voter education programs to provide people of color with this information.
Also, these groups should arrange transportation to get their constituents to the
designated state office to get the requisite state identification. Although some states
15DEFENDING THE FREEDOM TO VOTE, AMERICAN CIVIL LIBERTIES UNION, https://www.aclu.org/fighting- voter
-suppression (last visited Sep.27, 2013).
16 Brentin Mock, HIGHLIGHTS FROM CONGRESSIONAL BLACK CAUCUS LEGISLATIVE CONFERENCE,
ative_conference.html (last visited Sep.27, 2013) (citation omitted).
charge for these identification cards, some states issue them for free. Texas issues
non-drivers’ identification cards; although a host of documents can be used, it’s not
likely that the very poor or elderly would have them. The list includes:
Department of State
Original or certified copy of a court order with name and date of birth
indicating a name and/or gender change from a U.S. state, U.S.
territory, the District of Columbia or a Canadian province Individuals who do
not have a primary document or two secondary documents can provide one
secondary document (from the list above) and two supporting documents.
(3) Supporting identity documents include:
Social security card
Form W-2 or 1099
Driver license or ID card issued by another U.S. state, U.S. territory, the
District of Columbia or Canadian province (unexpired or expired less than two
Texas driver license or ID card that has been expired more than two years
Temporary receipt for a Texas driver license or ID card
School records* (e.g., report cards, photo ID cards)
Military records (e.g., Form DD-214)
Unexpired U.S. military dependent identification card
Original or certified copy of marriage license or divorce decree (if the
document is not in English, a certified translation must accompany it)
Voter registration card*
Concealed handgun license*
Professional license issued by a Texas state agency
ID card issued by a government agency*
Consular document issued by a state or national government
Texas Inmate ID card or similar form of ID issued by Texas Department of
Texas Department of Criminal Justice parole or mandatory release certificate
Federal inmate identification card
Federal parole or release certificate
Medicare or Medicaid card
Selective Service card
Tribal membership card from federally-recognized tribe
Certificate of Degree of Indian Blood
Unexpired foreign passport
Unexpired insurance policy valid for the past two years (e.g., auto, home or
Current Texas vehicle registration or title
Current Texas boat registration or title
Veteran’s Identification Card from the U.S. Department of Veterans Affairs
Hospital-issued birth record*
NUMIDENT record from the Social Security Administration
“NUMI-lite” letter from the Social Security Administration
*The document must be issued by an institution, entity or government from a
U.S. state, a U.S. territory, the District of Columbia or a Canadian province.17
North Carolina accepts similar documents as proof of identity.18
Civil rights organizations should also make a push to register people who,
against all odds, have the requisite documentation. As you can see if the above list,
report cards and school identification can be used as “supporting” documentation.
Those organizations that conduct voter registration drives on college campuses can
reach out to students as they are more likely to have a birth certificate and a school
record or two.
Of course, Congress can rectify the problems identified by the majority in
Shelby County and amend the VRA. Given Congress’ current dysfunctional state, it
is difficult to imagine any new legislation under after the 2014 midterm elections.
On the other hand, Senator Patrick Leahy of Vermont, chairman of the Senate
Judiciary Committee, recently expressed the idea that the VRA could be amended
before the end of 2013:
We must restore the vital protections that were weakened by the Supreme
Court’s ruling. We must provide additional remedies for states and counties
anywhere in the nation that not only have a history of discriminating against
their voters but continue to do so. We must extend the reach of these
protections to states that commit serious voting rights violations in the future.
We must amend the existing provisions of the Act to make those protections
more effective. And we must provide greater transparency for changes to
voting procedures so that voters are made aware of these changes.19
Civil rights groups immediately should begin to contact the Congressional
delegation from their state and put pressure on them to amend the VRA. If members
of their state delegations do not support the VRA, more progressive individuals
should be drafted to replace their current members of Congress. And, last, but not
least, civil rights groups should begin to prepare databases cataloging any attempts
17IDENTIFICATION REQUIREMENTS, TEX. DEP’T OF PUB. SAFETY (2011), available at
18Acceptable Requirements, North Carolina Division of Motor Vehicle (2012), available at
19 Brentin Mock, Congress May Fix The Voting Rights Act This Year. Here’s Why,
(last visited Sep. -27, 2013) (citation omitted).
at voter suppression in their states in preparation for litigation.
These databases show voter suppression tactics that are currently legal20; for
example, members of the Republican Party have called people they believed were
Democrats to tell them there was no need to vote because a certain candidate has
already won, Election Day was postponed, or otherwise trying to ensure a low
turnout in communities of color.•21 This strategy is not illegal but it should be.
In summary, civil rights advocates have to get creative to fight State voter
suppression laws in the face of renewed attacks on the rights of people of color.
20See, e.g., supra note 17.
21See, e.g., Sherrilyn A. Ifill, Black Voters Told, “Relax, Don’t Vote’, TheRoot.com,
ple.html (last visited Nov. 24, 2013) (Campaign manager of former Republican governor of Maryland guilty
of election fraud based on robocalls he authorized on behalf of his candidate).