The Voting Rights Act of 1965 said certain states had to check with the federal government before changing their election laws, to avoid racial discrimination. Less than 50 years later, the U.S. Supreme Court removed those states’ need to comply in a case called Shelby County v. Holder.
Kevin Morris is a senior research fellow and voting policy scholar at the Brennan Center for Justice, a left-leaning law and policy institute. On a new episode of “Race Unwrapped,” he tells LPM’s Michelle Tyrene Johnson the decision had dire consequences for equal voting access. Here’s part of their conversation, edited for clarity.
Could you tell me a little bit, first of all, about what the case is and what it undid or did?
In 2013, the Supreme Court handed down a decision in Shelby County v. Holder. And that really undermined a lot of the strength of the 1965 Voting Rights Act, and we argue that that led to an especially big increase in the racial turnout gap. What Shelby County did is it effectively suspended Section 5 of the Voting Rights Act. And what Section 5 of the Voting Rights Act did is it required states and localities, usually counties, with a history of race discrimination in their voting policies, to get permission from the federal government before they could change any of their policies.
It's called preclearance, right?
Yeah, they had to preclear any change with the federal government before it could go into effect.
The kind of example that I like to give that really illustrates the way that this worked out in practice, is that in 2011 — before 2013, before Shelby County was handed down, and when preclearance was still in effect — Texas passed a restrictive voter ID bill. And because it was covered under the preclearance regime, they had to get permission from the federal government before it could go into effect. And the federal government said no. The federal government said this cannot go into effect because it will have a racially discriminatory effect, so preclearance worked in that case.
The same day — June 25, 2013 — that Shelby County was handed down, Texas repassed the exact same voter ID bill. But now without preclearance, we and other civil rights groups have to sue and invest a huge amount of resources in trying to get it overturned. So, these policies that states are doing, knowing that they have a racially discriminatory impact, that used to be stopped by the strong Voting Rights Act, now require a huge amount of resources to get them overturned.
Do you think that that ruling is a form of voter suppression itself, or does it grease the wheel for other potential tactics of voter suppression?
Yeah. I mean, I think it's both. I think it's part of a trajectory from the Supreme Court over the last couple of decades that has backed away from the federal government supporting voting rights.
You know, it's not actively suppressing votes, but it is definitely undermining the federal protections that have been the bedrock of increased participation in a more flourishing multiracial democracy.
So, if I recall, something in your paper said that the turnout gap grew almost twice as quickly in formerly covered jurisdictions as in other parts of the country that were very similar in their demographics. What do you think that that says? What do you think that's about?
There are a lot of things that structure the racial turnout gap. Of course, everyone knows this, and especially for Black Americans, turnout was super duper high in 2008 and 2012 with Obama on the ballot.
We always knew that probably the turnout gap was going to grow a little bit unrelated to voter suppression when Obama was no longer on the ballot. And so one of the one of the strategies that we use for inferring the causal relationship between Shelby County and the turnout gap is to allow for, say, how much do we think the turnout gap would have grown if Shelby County hadn't been handed down, and then how much did it actually grow?
It grew twice as quickly. Not that it wouldn't have grown if Shelby County hadn't been handed down, but that it grew twice as much as we think it would have.
I've looked at a map of, you know, the historical lynching that took place, and it's just, it's just interesting to see that those red pins of where reported lynchings take place, unfortunately, has a correlation with states that seem to want to restrict voting.
These things run deep, right? This kind of fear of democracy, frankly, is what it is, fear of everyone getting a say in how a local community or a state is organized. It has long historical precedence. There are real definite historical continuities between what was going on in the 1700s and 1800s, and last century and now. It's all very tied together.
What do you think people should be keeping an eye on as we're riding this train, bullet fast, towards November?
I think everyone should be paying a lot of attention to the candidates that are running to represent them. You could be a Democrat, a Republican, an independent. We know that in 2022 there were a bunch of folks running for office that were election deniers that said that Joe Biden actually lost the 2020 election. Those election deniers did not do very well in 2022, because a lot of Republicans said, I don't want to support an election denier. So you can be a conservative American. You can be Republican, an independent. It doesn't matter what your party affiliation is. Democracy should not be a partisan issue.
So regardless of where you fall on other issues, you should be paying attention to whether or not the candidates that are running to represent you are representing your beliefs about whether or not we should have democracy in the United States, and whether or not we should trust the professionals that are running our elections around the country. And frankly, that might mean that some people have to make some tough decisions, that a candidate that they like otherwise has bad views about elections and making democracy available to everybody.