10 years after Supreme Court gutted voting rights, advocates say Congress must reverse damage

Since the U.S. Supreme Court handed down its ruling in Shelby County v. Holder exactly 10 years ago Sunday, at least 29 states have enacted nearly 100 restrictive laws including many that are racially discriminatory, according to an analysis by the Brennan Center for Justice.

The nonpartisan law and policy think tank said Friday that at least one-third of the voting restrictions—29 of them—passed in the last decade were enacted in 11 states which would have been subject to preclearance, the anti-discrimination rule that provided crucial protections as part of the 1965 Voting Rights Act (VRA) before Shelby was decided.

Under preclearance, jurisdictions that had histories of barring people from voting based on their race were required to get federal approval before introducing new voting policies.

"Without this guardrail, voters lost a bulwark against discriminatory voting policies, and states previously subject to preclearance were free to implement discriminatory restrictions on voting access without advance checks," wrote Jasleen Singh and Sara Carter at the Brennan Center. "Many states did exactly that. Along with a prior decision narrowly interpreting constitutional protections for voting rights, Shelby County also sent a message to the nation that the federal courts would no longer play their historic role as a robust protector of voting rights."

Texas wasted no time in announcing that a strict voter ID law, previously blocked by preclearance, would go into effect the same day that Shelby was handed down. Similar restrictions, which have been found to have a disproportionate effect on low-income voters and people of color, followed in at least nine states including Mississippi, Alabama, and North Carolina.

Since 2020—when the coronavirus pandemic upended voting and Republicans spread baseless lies about so-called "voter fraud" after former President Donald Trump lost his bid for reelection—GOP state legislators have largely turned their focus to restricting measures that offer flexibility to voters, such as mail-in ballots, said the Brennan Center.

"Since the 2020 election, 20 states passed 32 laws restricting mail voting access. Overall, 22 states passed 41 such laws since Shelby County," wrote Singh and Carter. "Some of these new restrictions have a clear racially discriminatory impact."

"For example," they added, "the Brennan Center studied a 2021 Texas law requiring a voter to include their driver's license number or the last four digits of their social security number on mail ballot applications and mail ballots and requiring the number to match the individual’s voter file data. During Texas's March 2022 primary, thousands of mail ballots and mail ballot applications were rejected, disproportionately cast by Latino, Asian, and Black voters."

A number of state legislatures have also taken advantage of the Shelby ruling as they have drawn new district maps.

Sherrilyn Ifill, former president of the NAACP Legal Defense Fund and a senior fellow at the Ford Foundation, said Sunday that she knew in 2013 that the Shelby ruling was "catastrophic," but did not predict that the Republican Party would "turn voter suppression into part of its national policy."

Before 2013, said Democracy Docket, which offers analysis and expert commentary on voting rights, the U.S. Department of Justice had blocked more than 3,000 proposed voter suppression laws under the VRA.

The Brennan Center pointed out that within its ruling in 2013, the Supreme Court stated that Congress could pass a new "coverage formula" to determine which jurisdictions would be covered by a preclearance provision.

"And it should," wrote Singh and Carter, "by passing the John R. Lewis Voting Rights Advancement Act to restore the Voting Rights Act to its full strength, as well as the Freedom to Vote Act to set nondiscriminatory baseline national standards for voting and elections."

In an op-ed at Newsweek on Sunday, U.S. Rep. Terri Sewell (D-Ala.) wrote that another voting rights-related ruling by the Supreme Court earlier this month, Allen v. Milligan, was "energizing" as the high court affirmed that Alabama had racially gerrymandered its electoral map.

However, she said, "we cannot rely on this Supreme Court, or the courts generally, to consistently protect our freedom to vote. We must, together, act."

In addition to passing the John R. Lewis Voting Rights Advancement Act and the Freedom to Vote Act, she wrote, "we must also engage in robust voter education and outreach efforts, empowering communities with knowledge and resources to help overcome anti-voting barriers."

While Ifill said she did not predict the extent to which the GOP would go to stop marginalized communities from voting, she "also did not predict the extraordinary determination of voters, who, even at the height of a deadly global pandemic refused to be bowed," she said. "That they would stand in line and risk their very lives to vote, despite efforts of Republicans and the indifference of the Supreme Court.

"The Shelby decision was catastrophic, yes," she added. "But we didn't give in and we won't give in. We will find a way to overcome every obstacle to our right to participate as first class citizens in American political life. We will vote and organize and litigate, and legislate until we win."