Supreme Court opened the door to states’ voting restrictions. Now a new ruling could widen them.
Jun 6, 2023, 6:00 PM
ATLANTA (AP) — Within hours of a U.S. Supreme Court decision dismantling a key provision of the Voting Rights Act, Texas lawmakers announced plans to implement a strict voter ID law that had been blocked by a federal court. Lawmakers in Alabama said they would press forward with a similar law that had been on hold.
The ruling continues to reverberate across the country a decade later, as Republican-led states pass voting restrictions that, in several cases, would have been subject to federal review had the conservative-leaning court left the provision intact. At the same time, the justices have continued to take other cases challenging elements of the landmark 1965 law that was born from the sometimes violent struggle for the right of Black Americans to cast ballots.
The justices are expected to rule in the coming weeks in a new case out of Alabama that could make it much more difficult for minority groups to sue over gerrymandered political maps that dilute their representation.
“At that point, you have to ask yourself what’s left of the Voting Rights Act?” said Franita Tolson, a constitutional and election law expert and co-dean of the University of Southern California School of Law.
Core parts of the law have been reauthorized with bipartisan support five times since it was signed by then-President Lyndon Johnson, the most recent in 2006. But congressional efforts to address the enforcement gap created by the June 2013 Supreme Court decision on what was known as preclearance — federal review of proposed election-related changes before they could take effect — have languished amid increasingly partisan battles over the ballot box.
The recent wave of voting changes have been pushed by Republican lawmakers who point to concerns over elections that have been fueled by former President the 2020 election was stolen.
At least 104 restrictive voting laws have passed in 33 mostly GOP-controlled states since the 2020 election, according to an analysis by the Voting Rights Lab, which tracks voting legislation in the states.
Alabama could add another to the list soon, one that would make it a crime to help a non-family member fill out or return an absentee ballot. While supporters argue the law is needed to boost security, critics say it could make it difficult for voters who are older, low-income, ill or who do not feel comfortable with the already cumbersome absentee ballot process, which includes a requirement to submit a copy of a photo ID.
“This is voter suppression at its best,” said Betty Shinn, a 72-year-old Black woman from Mobile who recently testified against the bill during a legislative hearing in Montgomery. “It’s no different from asking me how many jellybeans are in that jar or asking me to recite the Constitution from memory.”
It was such Jim Crow-era rules that the Voting Rights Act was designed to stop, relying on a formula to identify states, counties and towns with a history of imposing voting restrictions and with low voter registration or participation rates. They then were required to submit any proposed voting changes in advance, either to the U.S. Department of Justice or the federal court in Washington, D.C.
The law included ways for jurisdictions to exit the preclearance requirement after demonstrating specific improvements, and dozens had over the years. At the time of the 2013 decision, nine states and a few dozen counties and towns in six other states were on the list for federal review. That included a small number of counties in California and New York.
In the decade since the Supreme Court decision, which came in a case filed by Shelby County, Alabama, lawmakers in the nine states formerly covered by the preclearance requirement have passed at least 77 voting-related laws, according to an analysis by the Voting Rights Lab for The Associated Press.
Most improved voter access and likely would have sailed through federal review. But at least 14 laws – in Alabama, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – added new voting restrictions, the Voting Rights Lab found. These include nine, high-profile bills passed in the aftermath of the 2020 election that would have almost certainly drawn significant scrutiny from the Justice Department.
In Georgia, recalibrated their efforts to help voters.
Arizona passed two measures last year requiring voters who use state and federal voter registration forms to prove their citizenship and purging voters based on whether county election officials believe they might not be citizens or might not be qualified to vote.
Those could disproportionately affect Asian American, Native Hawaiian and Pacific Islander communities with cultural family names, said Alexa-Rio Osaki, political director of the Arizona Asian American Native Hawaiian and Pacific Islander for Equity Coalition.
“If Shelby v. Holder didn’t exist, we wouldn’t have to worry about feeling as if we’re excluded yet again,” she said. “So, we’re talking about targeting our own communities within the state just based on what our name is and whether that looks American or not.”
In North Carolina, voting rights groups are bracing for the return of the state’s strict voter ID law, which the new GOP majority on the state Supreme Court has revived. They say the law will disproportionately affect younger voters. Several North Carolina counties, home to a handful of historically Black colleges and universities, were previously subject to federal review.
The Voting Rights Lab analysis identified three restrictive bills passed in North Carolina and two in Florida since the Shelby decision that would have been subject to federal review because they affected local governments covered by the preclearance requirement.
For groups such as Vote.org, which focuses on voter registration and education in the states, the evolving legal landscape has meant moving quickly to update website information, retrain volunteers and overhaul education material to include the latest voting rules and polling place information.
The group has filed legal challenges in Florida, Georgia and Texas over new rules for registration forms that prohibit digital signatures.
“People don’t realize or are fully aware of the rollback that has happened since the Shelby decision,” Vote.org CEO Andrea Hailey said. “It means programs like ours have to work double time, at increased expense to make sure everyone has the opportunity to vote.”
Without the preclearance process, the Justice Department and outside groups must rely on the courts to address potentially discriminatory legislation after it’s already taken effect. While remedies are built into the legal system to address harm that has been done, elections are unique, said Justin Levitt, who recently served as the White House senior policy adviser for democracy and voting rights.
“If a discriminatory election happens, you can’t undo that,” said Levitt, who was a top Justice Department official during the final years of the Obama administration. “The only way to get legal relief is to make the next election better. But in the meantime, the people who were elected in a discriminatory election are in office and making laws.”
In Texas, Republicans have enacted one of the nation’s strictest political district maps to fortify their dominant majority amid rapid demographic shifts.
Legal challenges to Texas’ new voting laws have persisted, but to little effect. When a federal court in 2019 ruled that Texas can continue to change district maps without supervision, it did so despite voicing “grave concerns” in the state where nearly 9 of every 10 new residents are Hispanic.
Two years later, Democratic lawmakers staged a 93-day walkout in protest of additional voting restrictions that included changes to mail ballot rules. The changes were rushed into place before the 2022 midterm elections and resulted in nearly 23,000 ballots being rejected.
“We’ve seen a drastic change in election policy,” said Texas Rep. John Bucy, a Democrat. “I think all of this stuff, if we had preclearance, would be protected. We should be working together to make sure access to the ballot box is the most important thing, and we don’t do that in this state.”
In addition to Texas, the Justice Department has filed legal challenges to new voting rules enacted in Georgia and Arizona since the 2020 election.
Supporters of such laws say the courts, even after the Shelby decision, remain an effective check to address any problematic measures.
“Shelby County did not alter the fact that state election rules that discriminate against protected groups like racial minorities are illegal,” said Derek Lyons, president and CEO of Restoring Integrity and Trust in Elections, a group co-founded by Republican strategist Karl Rove. “And in the few instances when courts have identified violations, they have quickly remedied them.”
In its 2013 decision, the majority on the Supreme Court found the formula was outdated for determining which jurisdictions should be covered by the preclearance requirement and pointed to increased minority participation in voting.
It’s difficult to draw conclusions based on voter turnout data, especially since few states track it by race. Of the nine states where federal review had been required before the court ruling, all but one saw their statewide voter turnout decline for the 2022 midterm elections compared with the previous midterms four years earlier — but that also mirrored the trend nationally, according to an analysis of election and population data maintained by the AP.
Some of the states passing new restrictions also do have election policies that are voter-friendly, such as offering early voting and mail voting without needing an excuse.
“The Shelby opinion stands for the basic idea that if the federal government is going to take the drastic step of usurping the constitutionally endorsed power of states to govern their own elections, it must do so based on real and current data,” said Jason Snead, executive director of the Honest Elections Project. “By any objective measure, elections are free, fair, and accessible.”
Voting rights groups say that does not mean voting is easy, and they have been responding to the restrictions with fresh strategies. In Georgia, for instance, Common Cause set up mobile printing stations across the state so voters could comply with new voter registration rules that require an ink signature on a printed form.
“It’s only through the work of all these communities and groups on the ground that voters have access,” said Sylvia Albert, the group’s national director of voting and elections. “But doing this post-Shelby, courts are not recognizing the true damage those laws have had.”
The Supreme Court weakened another section of the Voting Rights Act two years ago with the state diluted the power of Black voters.
Under Alabama’s Republican-drawn congressional map, just one of seven districts has a majority Black population in a state where more than one in four residents is Black. A broad ruling in the case would not only uphold that map, but also make it much harder to sustain claims of racial discrimination in redistricting across the country.
“If those kind of things happen, they’ve effectively closed the door on the Voting Rights Act,” said Evan Milligan, executive director of Alabama Forward and the lead plaintiff in the case.
At the statehouse in Montgomery, Republican lawmakers pushing the new mail ballot restrictions say they are needed to combat potential fraud, which is rare.
“The purpose of the bill is very simple. It’s to make sure the balloting process, the election process in Alabama, is as secure as possible,” said the bill’s sponsor, Republican Rep. Jamie Kiel.
During the legislative hearing in late May, Shinn, the Mobile woman, testified the bill threatens to criminalize volunteers such as her at the League of Women Voters who assist people with voting every election.
“I’m 72 years old,” Shinn said. “I should not still be fighting this fight.”
Alexander reported from Washington. Associated Press writers Kim Chandler in Montgomery, Alabama; Acacia Coronado in Austin, Texas; and Aaron Kessler and Mark Sherman in Washington, D.C., contributed to this report.
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