Jurisprudence

The South Will Disenfranchise Again

Five years later, the consequences of the Supreme Court’s gutting of the Voting Rights Act are painfully clear.

A row of people using voting machines, with a black man in the foreground.
After waiting in line for 1.5 hours, Olando Narcisse casts his ballot on Election Day, Nov. 8, 2016, at Grady High School in Atlanta.
Photo edited by Slate. Photo by Jessica McGowan/Getty Images.

The two notices were published in a local paper on Aug. 9, but no one could quite make sense of them. In one, Georgia’s Randolph County Board of Elections and Registration declared it would hold public meetings on Aug. 16 and 17 “to discuss Precinct Consolidation.” In the other, the board clarified that it planned to close seven of the nine polling places in the county. It announced a meeting on Aug. 24 “to consider this proposal,” but failed to specify a date or time. The notice added that the closures “shall become effective” on Aug. 24—indicating that the period of consideration was already over, and the decision to shutter the polls had already been made.

For decades, Randolph County—a majority-black jurisdiction with a history of racist voter suppression—could not unilaterally alter its voting rules. It was covered under Section 5 of the Voting Rights Act, compelling the county to obtain federal permission, or “preclearance,” before changing its election procedures. In 2013, however, the Supreme Court kneecapped Section 5, effectively abolishing preclearance. The result has been a dramatic escalation of voter suppression across the country, a trend that’s vividly illustrated by the direct assault on the franchise in Georgia.

Two printed notices placed by the Randolph County Board of Elections and Registration.
Notices placed by the Randolph County Board of Elections and Registration announcing plans to “consolidate” polls for the November election.
Randolph County Board of Elections and Registration

From its passage in 1965 to its death in 2013, preclearance was widely considered the crown jewel of the American civil rights movement. The law identified states and counties in which white officials had historically attempted to disenfranchise blacks. (Fifteen states, including most of the South, were covered in whole or in part.) It then required these “covered” jurisdictions to prove to the Department of Justice that any new elections law did not have the purpose or effect of burdening minority votes. If the attorney general objected to a proposal, the jurisdiction could instead seek approval from a three-judge panel of the U.S. District Court for the District of Columbia. A covered jurisdiction could also bypass the attorney general and go directly to federal court to win approval.

Preclearance worked, and it remained critical even after the South abandoned its most overt methods of voter suppression. Between 1982 and 2013, Section 5 stopped more than 1,000 discriminatory voting changes; in 2012 alone, the Department of Justice used it to block 17 laws. But a year later, in Shelby County v. Holder, the Supreme Court’s five conservative justices concluded that preclearance had run its course and struck down the “coverage formula” that Congress used to select covered jurisdictions. As a result, the federal government lost its authority to stop voter suppression before it happened.

The states took note. Hours after the Supreme Court handed down its decision, Texas officials announced they would implement a draconian voter ID law that had been blocked under Section 5. Days later, the North Carolina legislature requested data on voting preferences by race. It used the information to create a “monster” voter suppression law that, in the words of a federal appeals court, seemed to “target African Americans with almost surgical precision.” (The court struck down the law, holding that it had a disparate impact on black voters and was passed with discriminatory intent.) In the five years since, previously covered jurisdictions have passed scores of laws cracking down on the right to vote. In addition to stringent voter ID laws, states have engaged in mass voter purges and extreme racial gerrymandering. They have also shuttered hundreds of polling places and slashed early voting.

Before Shelby County, the Department of Justice rejected election changes in Georgia nearly 180 times. An early preclearance objection filed in 1968 blocked a poll “consolidation” plan eerily similar to Randolph County’s. Similarly, in 1995, Jenkins County, Georgia, attempted to close a poll in a heavily black community without seeking voter input; the DOJ blocked the move under preclearance. Since Shelby County, the state seems to be making up for lost time. It has purged hundreds of thousands of voters from the rolls and barred tens of thousands more qualified voters from registering. Election officials have also shuttered precincts across the state. Many of these changes have a wildly disparate impact on minorities. The Randolph County closures follow this trend; if implemented, they would force thousands of black voters to travel up to 30 miles round trip to reach the nearest polling place.

If Section 5 were still in force, county officials could not attempt to sneak these plans through with a handful of notices and public meetings. They would have had to justify to the Department of Justice or a federal court that the poll closures would not negatively affect black citizens’ right to vote. True, Attorney General Jeff Sessions—who never met a voter suppression law he didn’t like—might have eventually rubber-stamped the plan. But Randolph County would’ve had an obligation to prove it wasn’t racist, and the public would’ve had notice that the “consolidation” was afoot. Indeed, the public would’ve had the opportunity to offer feedback: Preclearance included a community input section to let community members explain how a proposal might harm them.

Myrna Pérez, an attorney at the Brennan Center for Justice, told me preclearance had another, frequently unsung benefit: It made it difficult “to perpetuate disenfranchisement accidentally because of oversight or sloppiness.” Assume, for instance, that the Randolph County election board really hadn’t considered the effect poll closures would have on black residents. Under a preclearance regime, it would’ve had to grapple with the potential implications of its plan and might have realized the obvious drawbacks.

“The sheer act of putting it on paper, of explaining why your plan isn’t problematic—that lets people catch their own blind spots,” Pérez said. “People might not have malice in their heart; they just weren’t paying attention. Preclearance helped with that.”

With Section 5 inoperative, Randolph County had no legal obligation to defend the impact of its scheme on minorities. And if the American Civil Liberties Union of Georgia had not called attention to the closures, the county might have passed them with minimal notice. In the absence of Section 5, the ACLU must now wait to see if the county moves ahead with the plan. If it does, the group can file a lawsuit under the 14th Amendment as well as a different provision of the Voting Rights Act, Section 2, which remains in effect. But they’ll be fighting an uphill battle, attempting to reverse the damage rather than proactively preventing it.

In his opinion hobbling preclearance, Chief Justice John Roberts wrote that the 15th Amendment, which protects racial minorities’ right to vote, “is not designed to punish for the past; its purpose is to ensure a better future.” But Section 5 did not “punish for the past”; it used the past to determine where racial voter suppression was most likely to occur in the future. The catastrophic consequences of Shelby County suggest Section 5’s forecasts were accurate. And thanks to Roberts’ handiwork, the residents of Randolph County are confronting a future in which their right to vote has been quietly nullified.