Jurisprudence

Will the Court Revisit Shelby County?

It doesn’t seem likely the Supreme Court will overturn its disastrous Voting Rights Act ruling, even if there’s a new liberal on the bench.

VRA activists

Activists at a Voting Rights Amendment Act rally in Capitol Hill on June 25, 2014, the one-year anniversary of the Supreme Court decision in Shelby County v. Holder.

Win McNamee/Getty Images

Friday was a great day for voting rights. In fact, it was probably the best day voting rights advocates have had since 2013, when the Supreme Court gutted the Voting Rights Act. First, a federal appeals court struck down North Carolina’s voting law—seen by many as the most regressive in the nation—finding that Republican lawmakers intentionally discriminated against black voters in drafting the bill. Hours later, a federal court told Kansas it couldn’t stop people from voting in state and local elections this fall simply because they failed to show proof of citizenship when they registered. Not long after, a federal judge ruled unconstitutional a range of strict voting rules imposed in Wisconsin.

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Along with other recent decisions against voter ID laws in Texas and Wisconsin, Friday’s rulings suggest a new assertiveness by the courts in fighting off the most egregious state-level barriers to the polls. Even the high court—though unlikely to overturn its disastrous 2013 ruling in Shelby County v. Holder any time soon, even with a fifth liberal member potentially on the court after the election—is poised to join the wave by issuing a ruling significantly strengthening voting rights before too long.

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Of course, this isn’t the first time we’ve seen voting restrictions blocked by courts. And, thanks to Shelby, plenty of other new constraints—in states like Virginia, South Carolina, Alabama, and Georgia—will be in place in November. Still, the string of opinions over the past two-plus weeks has the feel of a potentially decisive shift in how courts treat these laws. In bracingly clear language, the recent rulings collectively reinforce the picture of these restrictions that their fiercest critics have long painted: That they purport to solve a problem—fraud and illegal voting—that doesn’t actually exist; that even if fraud were a problem, these laws would do little to stop it; that instead they keep large numbers of legitimate would-be voters from the polls; and that they affect blacks and Latinos more than whites, in many cases by design.

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The North Carolina ruling found that the law’s provisions “target African-Americans with almost surgical precision.” Lawmakers, the court recounted, asked for a racial breakdown of certain methods of voting—absentee voting, early voting, out-of-precinct voting, and same-day voter registration, in which voters can register and vote all in one—then eliminated or cut all those that blacks used more than whites. (On Friday, warning outlandishly that the North Carolina ruling could let Hillary Clinton “steal the election” through fraud, state Republicans said they’d appeal to the Supreme Court. But their chances of getting five votes on the eight-member court are slim.)

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Another opinion last month from the 5th U.S. Circuit Court of Appeals—the most conservative appeals court in the country—finding Texas’s voter ID law to be racially discriminatory was similarly scathing. It noted that the state saw only two convictions for in-person voter impersonation out of around 20 million votes cast in the decade leading up to the bill’s 2011 passage. And yet the measure did nothing to stop mail-in ballot fraud, which is far more common. The law’s provisions, concluded Judge Catharina Haynes, a George W. Bush appointee, “fail to correspond in any meaningful way to the legitimate interests the State claims to have been advancing.”

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Basically, we’ve come a long way from 2008, when the Supreme Court took it on faith that Indiana’s voter ID law was intended to stop fraud, without even requiring the state to show that fraud was a problem. Even two years ago, when a federal appeals court upheld Wisconsin’s ID law, it reasoned blithely—and against much of the evidence presented—that getting an ID should be easy for anyone “willing to scrounge up a birth certificate and stand in line at the office that issues drivers’ licenses.”

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So: Why the shift in how the courts view these laws? Some high-profile changes of heart may have helped. Retired Justice John Paul Stevens, who was part of the Supreme Court majority that upheld the Indiana law in Crawford, recently called it “a fairly unfortunate decision,” adding that the justices didn’t have access to enough information on the law’s impact. Judge Richard Posner, a conservative who wrote the appeals court decision that approved the same law, has gone further. He made clear in 2013 that he got Crawford wrong, writing that voter ID laws are “now widely regarded as a means of voter suppression rather than of fraud prevention.”

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More important is that we simply have more information than we did even a few years ago about the effects of voting restrictions. And nearly all of what we’ve learned supports the claims made by the laws’ opponents. Friday’s ruling against the North Carolina law cited data from the 2014 election in concluding that “thousands of African-Americans were disenfranchised” by the elimination of the same-day registration period.

Some liberals are even starting to hope that a future Supreme Court—with a ninth member appointed by President Hillary Clinton—could overturn Shelby. It’s not impossible, but the idea isn’t on voting rights advocates’ immediate radar. Shelby invalidated the plank of the Voting Rights Act, known as Section 5, that had required areas with a history of racial discrimination in voting to get their election changes pre-approved by the federal government. With Section 5 no longer in effect, most experts think it would be difficult to fashion a case challenging Shelby, and that even if you could, restoring Section 5 by judicial fiat might be too aggressive for some of the court’s liberals.

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More likely, for now, is that the court takes a different approach. Since Shelby, another plank of the Voting Rights Act, Section 2, has become even more crucial. Conservatives have long sought to limit Section 2’s scope, by arguing that it applies only to explicit and intentional racial discrimination, not actions that have a discriminatory effect. That’s a claim Texas made in defending its voter ID law. (So too did John Roberts, as a young lawyer in the Reagan Justice Department back in 1981, in a memo to his boss.) And it’s one that, as the appeals court in that case noted, would make Section 2 all but useless, since few people writing laws these days announce their intention to racially discriminate. A Supreme Court opinion resoundingly affirming the idea that Section 2’s ban on racial bias in voting should be read broadly would strengthen the Voting Rights Act and make it much easier for lower courts to continue blocking laws that obstruct the right to vote. And unlike restoring Section 5, it would have an impact nationwide.

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Indeed, such an opinion might get five votes even without a ninth justice. Last year, the court rejected a conservative challenge to the Fair Housing Act that similarly sought to narrow that law so that it would apply only to intentional racial discrimination. Justice Anthony Kennedy wrote the majority opinion backing the idea that the law bars more than just explicit racism—which suggests he might be open to doing so again when it comes to voting. Should the justices take a major voting rights case in the near future, the result could be a clear statement that targeting voters on account of their race is illegal, even with Shelby County still standing.

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