Voices & Choices

This is What Nine Years Without the Voting Rights Act Looks Like

This is What Nine Years Without the Voting Rights Act Looks Like

The Voting Rights Act (“VRA”) is an important example of how America does not always improve over the course of history, but opportunities nonetheless present themselves to chart a better path moving forward. The 2013 case Shelby County v. Holder is one such example, in which the Supreme Court claimed there was insufficient evidence of a racial gap in voter registration and turnout to justify upholding Section 4 of the VRA and allowing Section 5 of the Act to remain effective. Nine years later, we now have sufficient evidence.

As we have detailed before, the VRA, in part, required specified jurisdictions to gain “preclearance” from federal authorities before enacting changes to voting procedures. Like the rest of the VRA, Congress is able to update the specified jurisdictions upon re-authorization. However, in Shelby County Chief Justice Roberts wrote for the majority of the Court, “There is no denying, however, that the conditions that originally justified these measures [in the VRA] no longer characterize voting in the covered jurisdictions.” The Court reasoned that the coverage formula in the VRA was no longer necessary or appropriate, and it held Section 4(b) of the Act unconstitutional. In so doing, Roberts noted that in 2009 “African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent.”

Somehow the majority in Shelby County did not address the possibility that the VRA itself was an integral part of the progress that had been made as of 2009, which was acknowledged in the late Justice Ginsburg's dissent. The Court assumed that the country is on an automatic march toward progress. Such notions of inherent historical advancement have been shaped by the German philosopher Georg Wilhelm Friedrich Hegel. Hegel viewed human history as stages of increasing freedom, with an inevitable future of an improved human condition. The Supreme Court, essentially embracing this view, found Section 4(b) of the VRA unnecessary. The country, it seemed to be assumed, had improved past the point of requiring a Voting Rights Act. However, evidence from the past nine years of the importance of a fully functional and authorized VRA could not be more clear. 

Without the protection of the Act, shredded by the Court in 2013, 21 states enacted new voting restrictions ahead of the 2016 election, and since the 2020 election at least 18 states have passed new restrictive voting laws. In a recently published peer-reviewed article, Michael Barber and John Holbein described what they call “turnout deserts” or geographic areas where voter turnout is significantly lower than the rest of the country. They analyzed extensive voting records to find that, “minority citizens are much less likely to vote than White citizens” and they further found, “evidence of the geographic dispersion of political inequality at such a fine micro level and… provide[d] evidence of areas in the United States where turnout is strikingly low and unequal.” In fact, Black voters were found to be over 3 times more likely to live in a voter turnout desert precinct than white voters. 

In 2013, Chief Justice Roberts noted that after successive re-authorizations of the VRA, “the States of Alaska, Arizona, and Texas, as well as several counties in California, Florida, Michigan, New York, North Carolina, and South Dakota, became covered jurisdictions,” seemingly lamenting legislative overreach. Nine years later, Barber and Holbein found, “California, Arizona, and Texas stand out as states with many counties where a large fraction of precincts have remarkably low turnout rates. Counties with high proportions of turnout desert precincts also appear more frequently in the Appalachian region and in the Great Lakes states of Michigan and Wisconsin.” While not exact, the overlap of the areas covered by Section 4(b) of the VRA up until 2013 and the areas found by researchers in 2022 to have the lowest voter turnout is remarkable. 

The Supreme Court assumed that the country will, by destiny, eventually right itself from discrimination. The majority maintained the usefulness of Section 2 of the VRA in fighting remaining discrimination, but otherwise did not acknowledge that regression could occur. Indeed, the sidelining of the VRA as a bulwark against state and local governments enacting discriminatory voting laws should itself be understood as reversed civic progress. In the nine years since the decision, the United States has arguably seen more racially regressive voting laws and court decisions than those handed down between the passage of the VRA and the Shelby County decision. And now, our current state of voting rights signifies a broader antagonism toward proactive attempts at racial equality in our society. This is precisely the opposite direction of movement in equality and fairness that Hegelian thought would predict and that the Supreme Court assumed. 

One cannot presume the salvation of the American character to come through the passage of time alone. Spurring a notion of inherent progress is central to the task of addressing the current chapter of American social and racial backsliding. Even if one insists that the arc of the moral universe bends toward justice, it does not bend by itself. By actively supporting other efforts at protecting Americans from discriminatory voting policies, like the recently passed John R. Lewis NY Voting Rights Act in New York State, we can each do the hard work of democracy. And by familiarizing ourselves with the barriers before our fellow Americans, we can begin to do the bending ourselves.

Join Us Today to Help Create a More Perfect Union