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Should Upholding Federalism Outweigh Voter Protections_.pdf (98.65 kB)

Should Upholding Federalism Outweigh Voter Protections?

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posted on 2023-07-28, 18:39 authored by Javon Darrien


American history has an overarching theme of voting rights. As our country continued to grow throughout its history, enfranchisement has permeated the legal and political discussions of every era. When the country was originally founded, only white landowners were given the right to vote, it eventually grew into all white men, and along a turbulent path evolved to what we know today. The path came with countless casualties and sacrifices, but even then, the voting conflict continues today. On numerous occasions the 2020 Presidential Election has been dubbed the most important election of our time. While it may feel like that grandiose statement is made for nearly every election, it’s a testament to how contentious this election has developed.

Voting has been a debate during every election, and this has been amplified due to the COVID-19 pandemic. With the risks of catching the virus, mail-in voting has become more prevalent on the national stage. The discussions of mail-in voting have been very controversial, with two sides being either for or against its implementation. Some feel that regular voting has become more difficult due to the pandemic, while others feel that it is safe enough to vote in person. Additionally, the rules and regulations regarding voting have been heavily debated, some accusing state officials of voter suppression. While the American voting system isn’t flawless, the accusations of voter suppression have become more mainstream in recent years. It can be argued that this influx of voter suppression cases stemmed from the landmark 2013 Supreme Court case, Shelby County v. Holder.

History of the Voting Rights Act of 1965

Did Shelby County open up the path for voter suppression policies? Many argue yes, but the analysis of the case will prove whether or not. The background of the case can be traced back to 1965, with the passing of the Voting Rights Act, the landmark piece of legislation the case is centered around. Section 5 of the act contained a provision that essentially forced states to receive federal authorization anytime they wanted to pass a law related to voting. It was an integral component of the legislation, as it gave the federal government the ability to directly approve or disapprove the state’s law. This was intended to ensure that states wouldn’t pass discriminatory laws that may not have initially appeared as so. States would often attempt to pass laws that would disenfranchise, but the federal government had the ability to recognize and void it before it was passed. Today it still takes place, more discreetly, but before the law was passed, states were far more explicit and clear in their intent to disenfranchise.

Constitutionally, African Americans could vote in the 20th century, yet in practice they were largely unable to vote because of voter suppression laws in place, as well as intimidation from white supremacist groups. A pamphlet titled “To the Colored Man of Voting Age in the Southern States” was distributed in 1900, and it described what was needed to vote. The requirements for South Carolina are listed:

“Must reside in the State two years, in the County one year, and four months in the polling precinct. Must be registered, and in order to do so must be able to read and write any section of the Constitution submitted by the registrars, and if unable to read and write, must prove to the satisfaction of the registrars the ownership of three hundred dollars worth of property in the State, upon which all taxes for the previous year must have been paid. All poll tax must be paid six months before election, and tax receipts showing the payment of all taxes including the poll tax shall be shown to the election officer at the polls. Any person convicted of felony, adultery, larceny, wife-beating or miscegenation is forever barred from voting.”(To the Colored Man of Voting Age in the Southern States, 1900)

For African Americans in the South, the institutional effects of slavery remained abundantly prevalent at that time, so many of them couldn’t pass these tests. The Voting Rights Act of 1965 essentially outlawed these practices, and the provisions set in place prevented states from passing further legislation similar to these practices. It became far more difficult for states to disenfranchise, and they had to find new ways to circumvent these provisions. Today, a common way to disenfranchise would be stripping the right to vote away from convicted felons, even if they are out of prison. Only some states use this method. The method is especially heinous to the minority population, specifically African Americans, who have consistently been incarcerated at higher rates than any other race. The two other common practices are government issued IDs, and voter roll purging. While government issue IDs sound intuitive, they often are acquired at offices that can be far out of reach for those who might not possess a vehicle to get there. Additionally they can often require a birth certificate, which everyone might not have readily available, and it costs extra money. In a way, it can be compared to a 20th century poll tax, hidden behind a reasonable-sounding provision. Purging is where state officials will remove names from voter registration lists for various reasons, without notification. The citizen proceeds to arrive at the site to vote, only to find out that they aren’t registered anymore. These different issues are important when analyzing Shelby County.

Shelby County v. Holder Analysis

Chief Justice John Roberts penned the majority opinion in the contentious 5-4 decision. Shelby County, a region in Alabama, filed suit to the U.S District Court in D.C. that Sections 4 and 5 of the Voting Rights Act of 1965 are unconstitutional. As stated previously, Section 5 forced some states to receive federal authorization anytime they wanted to pass a law related to voting. Section 4 essentially defined the states that needed this authorization, which came under two criteria. The first was if there was a test or poll tax in place before November 1st, 1964, then they needed to get authorization. The second was if the state had less than fifty percent voter turnout in the most recent election at that time. Additionally, the Attorney General could make a decision at their discretion. The decision SCOTUS reached, was that the two sections are in fact, unconstitutional.

The Supreme Court wrote that the enforcement of the VRA (Voting Rights Act) was far too stringent for today’s current climate. They felt the methods used were outdated, and the racial climate in these states that made this enforcement necessary was nonexistent. Chief Justice John Roberts wrote in the majority opinion:

There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done.

As stated previously, it was a controversial 5-4 decision. The late Justice Ruth Bader Ginsburg wrote a dissenting opinion that outlined the reasoning behind her vote for Holder. She defined the voting issues we see today as “second-generation barriers,” and essentially felt that this decision would open up opportunities for more barriers to be placed against minority voting. She wrote: ”In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as pre-clearance remains vital to protect minority voting rights and prevent backsliding.” This is a direct reference to the previously mentioned modern measures used for voter suppression. Justice Ginsburg’s claim was more than that, it was a prediction, of the expanded voter suppression policies that were later to come.

The Effects of the Ruling and Conclusion

As she predicted, the legislation impeding voter turnout grew. For example, after the ruling, North Carolina passed a bill that took out a week of early voting, removed same day voter registration, required photo ID and took out “out of precinct” voting. In addition, voter purging increased from 2014 to 2016, with almost 16 million voters purged from rolls. The data points to both the purges and the legislation increasing since the ruling, so Justice Ginsburg’s point does seem to be accurate.

The ruling that SCOTUS reached argued that the racial climate in these regions that caused racist voter disenfranchisement is no longer present anymore. On the surface it may seem that way. As stated previously, the policies that were in place in the 20th century were explicitly racist and pushed without expected opposition. With the Voting Rights Act, these explicitly racist policies couldn’t stay, and the policies that contained underlying racist intents were able to be voided with the pre-clearance section. By taking that out, state officials were able to put out policies that on the surface may seem intuitive and correct, but the data proves that it disproportionately affects racial minorities. Today, our elections continue to have high stakes, and it’s important that all members of society have their voices heard, and Shelby County v. Holder has proved to be a strong deterrent in ensuring that.



American University (Washington, D.C.); Juris Mentem Law Review


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