How One Court Ruling Sabotaged Voting Forever

June 15, 2016

Usually anniversaries are fun. Sometimes there’s cake. And gifts. Or at least some hugs and well-wishes.

Well, this is a different kind of anniversary.

It’s now been three years since the Supreme Court’s historically awful ruling in the Shelby County v. Holder case, which eviscerated the Voting Rights Act (VRA) and dramatically weakened our democracy.

The Fantasy of Our Democracy

We’re going to be honest: what we were taught about democracy in school is largely a fantasy. You know, the story of how every citizen goes out and cheerfully drops a ballot in the box on Election Day because, after all, that’s what government “of the people, by the people, for the people” looks like.

In real life, the powerful have attempted time and again, since the country’s earliest days, to keep people (African Americans, women, felons, young people, the list goes on) from voting and taking part in our democracy.

There Was Progress! And Then There Wasn’t

Laws like the Voting Rights Act were passed—only after years of bruising political, and sometimes physical, battles—to right this kind of shameful wrong. And with one decision, the Supreme Court erased all that, set us back decades in the fight for voting rights, and reminded many of our neighbors and friends once again that their voices are not valued as much as they should be.

So, What Really Happened?

In Shelby v. Holder, the Court ruled 5-4 that section 4 of the VRA was unconstitutional. Section 4 determines how the Justice Department enforces section 5, which demands that states with a history of discrimination (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia in their entirety; and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota) get preclearance from the federal government before making any changes to their election laws.

Translation: Under the original VRA, states that had a history of discriminatory voting practices had to check in first with the Federal Government before making any new laws about voting—a double-check to keep them from sneaking in any new discriminatory practices. But now, thanks to Shelby vs. Holder, they don’t have to check in with anyone. Not surprisingly, they wasted no time dialing up the discrimination.

So while the Shelby ruling did not overturn the entire VRA, it rendered it toothless, because the Justice Department now has little power to ensure free and fair elections in those states.

And wow, did those states take advantage of their new-found freedom to disenfranchise voters! Sometimes people ask why change takes so long. Well, the speed with which Alabama, Arizona, North Carolina, Texas, and other states passed voter-suppression legislation after the VRA was gutted would be inspiring, if it weren’t also so completely anti-democratic.

Since When Did a Little Suppression Hurt Anyone?

The VRA worked really well. In her Shelby dissent, Justice Ruth Bader Ginsburg wrote that the VRA “became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our nation’s history.” After its passage in 1965, it blocked countless proposals and pieces of legislation that would have made it harder for African Americans, Latinos, and other people of color to cast a vote. Voter turnout rates and participation went up in minority communities. Minorities hold office at “unprecedented levels” (according to Chief Justice Roberts). Some sense of trust was restored.

Now state legislatures and governors are tripping over themselves to pass absurdly restrictive voter ID laws, for example, that are nothing if not a modern revival of the old Jim Crow South. They make it harder for minority, low-income, student, and elderly voters to get to the polls and vote. People of color have been especially hard hit by these laws, which of course do more than keep potential voters home on Election Day. If you lose your voice in government, then your priorities won’t be represented when policies are discussed.

“This is our Selma,” Rev. Dr. William Barber, president of the North Carolina NAACP and a leader in the fight to restore voting rights, has said. “It’s a sad and shameful truth that…African Americans have fewer, not more, voting protections today” than they did 51 years ago.

Time to Get to Work

So how can we fix it?

The most important thing we can do is vote, and help register others to vote.  Make sure to support those candidates who make voting rights a priority. And visit Free to Vote to add your name to the petition for a Constitutional amendment that would protect the right for all to vote.