About the Author: Daraja Carroll is a third year law student at American University- Washington College of Law. Daraja graduated from San Diego State University and hopes to work at a civil rights organization and one day become a Constitutional Law professor after graduating law school.
In 2013, the Supreme Court decided Shelby County v. Holder, effectively eliminating the requirement for states to get federal approval before changing voting laws. Now, in 2020, in the midst of what may be the most important election of our lifetime, we are seeing the impact of this decision through the voter suppression it has sparked all across the country. Lawsuits are popping up in states across the South challenging the discrimination and suppression, all anchored by one once-powerful piece of legislation, the Voting Rights Act.[1]
Prior to 1965, white Americans used many restrictive practices to deny Black Americans meaningful access to the ballot box. In passing the Voting Rights Act, Congress intended to halt the literacy tests, poll taxes, and voter intimidation used by white Americans, through the use of a preclearance regime that required states and localities with records of racial discrimination to submit voting law changes to the federal government before the changes could actually be implemented. When signing the Voting Rights Act into law, President Lyndon B. Johnson remarked “to deny a man his hopes because of his color or race or his religion or the place of his birth is not only to do injustice, it is to deny Americans and to dishonor the dead who gave their lives for American freedom.” Though powerful, President Johnson’s statement went unheard as New Jim Crow discrimination laws popped up further limiting the amount of Black Americans who could engage in the political process.
Unfortunately, some of these New Jim Crows laws have been brought back through equivalent modern day problematic practices used to restrict Black votes including photo voter identification requirements, felon disenfranchisement, limited ballot access for language minorities, and racial gerrymandering.[2] Despite the consistent presence of voter suppression practices, in 2013, the Supreme Court rendered the preclearance regime moot, essentially ridding the law of racial and language minorities protections needed to exercise one of our most important rights as American citizens.[3]
When the Shelby County decision was made, the composition of the Senate was quite different than it is today. Where then Congress could repair, expand, and improve the Voting Rights Act where necessary, Republican legislators have denied that opportunity so the preclearance requirement will stand, as abolished. Many civil rights scholars and voting rights advocates say this is leading to a wave of modern voter suppression laws and tactics. [4]
The 2020 election is set to be one of the most important elections for a generation. With a highly-anticipated election comes claims of voter suppression, unsurprisingly most prevalent in the states that were initially under the preclearance requirement. Due to prior discriminatory acts, Texas was on the list of states needing to get preclearance before changing voting laws. The current pandemic has severely impacted many Texas residents and has turned attention to the absentee voting system. Despite this hardship, Texas Governor Abbott issued an order limiting each Texas county to a single ballot drop-off location.[5] Harris County, one of the counties with just one ballot drop off after the Governor’s order, covers over 1,700 square miles and had originally planned a dozen drop-off sites. [6] Governor Abbott cited ballot security as the reason for the restriction however some claim the new order may be part of a plan to stop a surge of Democrats in Texas politics.[7]
While it may seem like many of the things the dissenting justices in Shelby County worried about are coming to light now, there is still a chance to reclaim the integrity of our election process. U.S. Representative Terri Sewell of Alabama recently introduced the John Lewis Voting Rights Advancement Act, in honor of the late civil rights giant, John Lewis. The legislation would reinstate major provisions of the Voting Rights Act of 1965.[8]
Even if Congress isn’t able to make the 2020 election happen without the same acts of discrimination Congress sought to avoid back in the day, there is still hope. Some scholars have called on municipalities and local governments to be the “test tubes of democracy.” [9] Even the well-respected Justice Brandeis called states laboratories of democracy and policy innovation leading scholars to believe until a feasible, federal solution presents itself, states and localities now hold the lever to safeguard minority voting rights.” [10]
[1] Steve Benen, Who’s Most Affected by Texas Restricting Ballot Drop-Off Locations, MSNBC (Oct. 2, 2020, 10:32 AM), https://www.msnbc.com/rachel-maddow-show/who-s-most-affected-texas-restricting-ballot-drop-locations-n1241827.
[2] See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).
[3] White House, Our Government: Elections and Voting, https://www.whitehouse.gov/about-the-white-house/elections-voting/.
[4] Block the Vote: Restoring the Voting Rights Act, 1A WAMU (Sept. 23, 2020), https://the1a.org/segments/block-the-vote-restoring-the-voting-rights-act/.
[5] Andrew Schneider, Texas Governor Plans to Limit Number of Ballot Drop Boxes to 1 Per County, NPR All Things Considered (Oct. 2, 2020), https://www.npr.org/2020/10/02/919658842/texas-governor-plans-to-limit-number-of-ballot-drop-boxes-to-1-per-county.
[6] Emma Platoff, Gov. Greg Abbott limits counties to one absentee ballot drop-off location, bolstering GOP efforts to restrict voting, Texas Tribune (Oct. 1, 2020 5PM) https://www.texastribune.org/2020/10/01/greg-abbott-texas-vote-mail/.
[7] Acacia Coronado, Texas governor restricts mail-in ballot drop-off locations, AP News (Oct. 1, 2020) https://apnews.com/article/election-2020-houston-greg-abbott-voting-austin-11ff8a7a5a581940cb5c37b4e167270e
[8] Id.
[9] See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
[10] NOTE: A Path Forward for Our Representative Democracy: State Independent Preclearance Commissions and the Future of the Voting Rights Act After Shelby County v. Holder, 10 Geo. J. L. & Mod. Crit. Race Persp. 95; Steve Benen, Who’s Most Affected by Texas Restricting Ballot Drop-Off Locations, MSNBC (Oct. 2, 2020, 10:32 AM), https://www.msnbc.com/rachel-maddow-show/who-s-most-affected-texas-restricting-ballot-drop-locations-n1241827.
