Reflecting On the 10th Anniversary of Shelby County v. Holder

This coming Sunday, June 25, will mark the 10th anniversary of the U.S. Supreme Court’s decision in Shelby County v. Holder. This anniversary provides an important opportunity to reflect on the profound consequences of that opinion, which struck down key provisions of the Voting Rights Act of 1965 and left millions of voters of color without the mechanism that had stopped voting discrimination before it could be implemented.

When President Lyndon B. Johnson signed the Voting Rights Act into law, he described it as “one of the most monumental laws in the entire history of American freedom.”  The Voting Rights Act was the product of bold action by Congress. It forcefully addressed the problem that nearly a century after the Reconstruction Amendments, millions of Americans were still denied the ability to vote and participate in our democracy because of their race.

One of the most important pieces of the Voting Rights Act was Section 5’s “preclearance” requirement. Enacted in 1965 and reauthorized by Congress in 1970, 1975, 1982, and 2006, Section 5 required jurisdictions that had a history of voting discrimination to obtain approval from the Attorney General or a federal court before implementing changes in election procedures and practices. Covered jurisdictions could not implement their proposed voting changes until they had received preclearance. Thanks to Section 5, jurisdictions that tried to make changes that had a discriminatory impact or were adopted with a discriminatory purpose were blocked from doing so. More than 800 proposed changes were altered or withdrawn in the period after 1982 alone. A repository of the department’s Section 5 “Objection Letters,” which provided an official record of each objection as well as the basis for the decision, can be found here. 

The Shelby County ruling marked a significant turning point for voting rights in the United States.  In its decision, the Supreme Court invalidated, on constitutional grounds, Section 4(b) of the Voting Rights Act, which provided the formula for determining which jurisdictions were covered under Section 5.  Without that formula, all jurisdictions were released from coverage overnight.  Section 5 was rendered effectively inoperative, freeing states and localities to enact voting laws without federal oversight.

States wasted no time implementing election changes that had not or might not have survived the preclearance requirement. On June 25, 2013, the very day that the Supreme Court issued the Shelby County opinion, Texas officials announced that they would implement a discriminatory and burdensome photo identification statute.  And on June 26, the day after the Shelby County decision, Senator Tom Apodaca, Chairman of the North Carolina Senate Rules Committee, publicly stated that the North Carolina Legislature would be moving forward with an omnibus law imposing multiple voting restrictions.  In the absence of preclearance, the statutes went into effect and the Department, along with private parties, had to file suit under a different part of the Voting Rights Act to enjoin them.  Those lawsuits ultimately succeeded but they took years to litigate and consumed substantial resources, including millions of dollars spent by Texas and North Carolina to defend the state laws.  In the meantime, untold numbers of voters were burdened or disenfranchised because the laws remained in place while the cases were pending.

The Texas and North Carolina examples are not the only troubling and unlawful post-Shelby voting changes that have discriminated against voters of color. States have adopted photo identification requirements, limited who can provide assistance at polling places, reduced options for early voting, and closed polling places. Unfortunately, Justice Ruth Bader Ginsburg proved prophetic when she observed in  her Shelby dissent that ending preclearance was like “throwing away your umbrella in a rainstorm because you are not getting wet.” And without Section 5, new laws can be challenged only through long, protracted, resource-intensive, case-by-case litigation.

Despite the challenges created by the Shelby County decision, the Justice Department continues to enforce other federal statutes that protect voting rights through various means, including by bringing lawsuits in federal court, educating the public about their rights, and offering guidance on compliance with federal statutes on issues like redistricting and post-election audits and voter intimidation.  The Department of Justice will continue to employ every tool at its disposal to safeguard the fundamental right to vote. Americans, regardless of their race or the language they speak, should have equal access to the ballot.

This 10th anniversary provides an opportunity to reflect on the current moment and to look to the future. Recent events confirm that voting rights laws still have vibrancy today. Earlier this month, the Supreme Court issued an important decision in Allen v. Milligan, a case involving Section 2 of the Voting Rights Act. The Allen decision, as Attorney General Merrick B. Garland observes, “rejects efforts to further erode fundamental voting rights protections, and preserves the principle that in the United States, all eligible voters must be able to exercise their constitutional right to vote free from discrimination based on their race.”

Finally, looking forward, we remain steadfast in our support of the John Lewis Voting Rights Advancement Act, which would remedy the Shelby County decision by updating the criteria used to determine which jurisdictions are subject to Section 5 coverage.  The Department is committed to assisting with legislative efforts to address the elimination of Section 5 preclearance, protect voting rights, and strengthen our democracy.

For more information about the Department of Justice’s ongoing efforts to protect the Right to Vote and to access other voting-related resources, please visit https://www.justice.gov/voting.