How Shelby County v. Holder Created the New Georgia Voter Suppression Law

By Heidi Simpson, Vice President

On Thursday, March 25th, Georgia Governor Brian Kemp signed into law a new bill that will substantially restrict voting rights in the state.[1] The bill will, among other things, criminalize providing food and drinks to people who are in lines waiting to vote – lines that are often hours long.[2] It is also important to note that in Georgia, a state where over 30% of the population is Black, these new restrictions will make it harder for non-white Georgians to vote.[3] There are a lot of things that can be discussed here - the contents of the bill, potential challenges, allegations of voter suppression against Brian Kemp from the 2018 gubernatorial race[4] – but I’d like to take a step back to talk about the Supreme Court case that got us here: Shelby County v. Holder. Shelby County is one in a long series of Supreme Court cases that have eroded the right to vote in the United States and is the reason why the Georgia state government can simply pass voting restrictions into law.

Although Black Americans were formally given the right to vote in the United States with the passage of the 15th amendment, it is no secret that, in practice, targeted legal restrictions prevented Black Americans from voting throughout the Jim Crow era. In 1965, the Voting Rights Act was passed in an attempt to remedy this wrong. In 2013, the Supreme Court decided Shelby County v. Holder, effectively dismantling key provisions of the Voting Rights Act, and the new Georgia voting bill is one of many consequences of that decision.

The Voting Rights Act had three key provisions relevant to Shelby County. First, under Section 2 States and other political subdivisions are prohibited from applying any “voting qualification or prerequisite to voting, or standard, practice or procedure” that would “deny or abridge the right of any citizen of the United States to vote on account of race or color.”[5] Section 4 created a coverage formula that applied to political subdivisions that had a test or device that prevented people from voting on the basis of race as of November 1, 1964 and had fewer than 50% of voting age residents registered to vote, or actually voting in the 1964 presidential election.[6] Under Section 4, there was also a process by which political subdivisions could essentially appeal their “covered” status, and be determined to no longer be subject to the preclearance requirements for “covered” jurisdictions described in Section 5.[7] Section 5 established that states, counties, municipalities, and any other political subdivisions that were “covered” by Section 4 could only enact new voting laws if either the District Court in D.C. issued a declaratory judgment that the new law was not racially discriminatory or the Attorney General, after 60 days of review, did not object to the measure.[8]

Shelby County is an Alabama county that was “covered” under Section 4 of the Voting Rights Act, and it sued when its proposed voting restrictions were not approved by the Attorney General.[9] Shelby County sought a declaratory judgment declaring Sections 4 and 5 unconstitutional.[10] The District and Circuit Courts both upheld both sections of the VRA, but the Supreme Court, in an opinion authored by Chief Justice John Roberts struck down the coverage formula in Section 4 as unconstitutional.[11] The Court decided that because the formula was initially adopted in the 1960’s as a remedy to “pervasive, flagrant, widespread, and rampant” discrimination that it claims does not exist today in the covered jurisdictions.[12] Essentially, although the Court found this particular coverage formula unconstitutional, it left the door open for Congress to pass a new formula to which the preclearance requirement in Section 5 could apply, but no such bill has passed.[13]

Immediately after this decision was handed down, states and other jurisdictions began passing voting restrictions. Within 24 hours of the decision, Texas implemented restrictive voter ID requirements.[14] Similar restrictions popped up all across the country and included strict photo identification requirements, limits on assistance at the polling places, decreasing early voting days, closing polling places, purging voter registration rolls, and redrawing districts to disadvantage certain communities.[15]

The Supreme Court is now in the process of deciding another case that would further limit the voting rights act – Brnovich v. DNC. In this case, the Arizona GOP seek to substantially limit the protections in section 2 of the Voting Rights Act because ensuring more minorities are actually able to vote “puts [them] at a competitive disadvantage relative to democrats.”[16] The Court will likely decide this case in late June, when many of its more controversial opinions are handed down. However, of the 6 Justices from Shelby County who are still on the Court, three part of the majority that already substantially limited the VRA, and there is little to no indication that they would be reluctant to limit it further. This includes Justice Thomas, who in his concurrence to Shelby County noted that he believed the Court did not overturn enough of the VRA.[17]

What happens next remains to be seen – will Congress pass more voter protection laws, preventing, at least for now further deterioration of the right to vote? Will the Supreme Court overturn yet another part of the VRA in Brnovich v. DNC? Will Georgia’s voting restrictions be upheld? The answers to all of these questions will only come with time, but they all have serious implications for the functioning of American democracy.

[1] Fernando Alfonso III et al., The latest on Georgia’s new law suppressing voting access, CNN (last updated 5:52 p.m., Mar. 26, 2021), https://www.cnn.com/politics/live-news/georgia-voting-restrictions-bill-03-25-21/index.html. [2] Dareh Gregorian et al., Early voting begins in Georgia with long lines, high turnout, NBC News (Oct. 12, 2020), https://www.nbcnews.com/politics/2020-election/early-voting-begins-georgia-long-lines-high-turnout-n1242995. [3] Richard Fausset et al., Why the Georgia G.O.P.’s Voting Rollback Will Hit Black People Hard, N.Y. Times (Mar. 25, 2021), https://www.nytimes.com/2021/03/25/us/politics/georgia-black-voters.html. [4] Jessica Taylor, Georgia's Stacey Abrams Admits Defeat, Says Kemp Used 'Deliberate' Suppression To Win, NPR (Nov. 16, 2018), https://www.npr.org/2018/11/16/668753230/democrat-stacey-abrams-ends-bid-for-georgia-governor-decrying-suppression. [5] Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 at § 2. [6] Id. at § 4. [7] Id. [8] Id. at § 5 [9] Shelby County v. Holder, 570 U.S. 529, 540 (2013). [10] Id. at 540–41. [11] Id. at 541–42, 557. [12] Id. at 553–54. [13] The John Lewis Voting Rights Advancement Act would restore the preclearance requirement, but it has yet to be passed into law. Myrna Perez & Tim Lau, How to Restore and Strengthen the Voting Rights Act, Brennan Center (Jan. 28, 2021), https://www.brennancenter.org/our-work/research-reports/how-to-restore-and-strengthen-voting-rights-act. [14] The Effects of Shelby County v. Holder, Brennan Center (Aug. 6, 2018), https://www.brennancenter.org/our-work/policy-solutions/effects-shelby-county-v-holder. [15] P.R. Lockhart, How Shelby County v. Holder upended voting rights in America, Vox News, (Jun. 25, 2019), https://www.vox.com/policy-and-politics/2019/6/25/18701277/shelby-county-v-holder-anniversary-voting-rights-suppression-congress. [16] Transcript of Oral Argument at 37–38, Brnovich v. DNC (2021) (No. 19–1257). [17] Shelby County at 557 (Thomas, J., Concurring).