July 06, 2023
By Mark Hedin
Three U.S. Supreme Court decisions have slowed down but not reversed the steady erosion of voting rights over the last decade, especially for voters of color in Southern states.
A new report from the Southern Poverty Law Center shows how deep the damage has run since the Court’s landmark 2013 ruling in Shelby v. Holder ended pre-clearance provisions of the 1965 Voting Rights Act used to battle racist voting laws.
The 6-3 decision June 27 in the Moore v. Harper case, laid to rest the “independent state legislature” theory that only state legislatures have the power to make voting rules, with no oversight from courts, elected officials, the initiative process, or anything else.
Gerrymandering
That the court would even consider such a seemingly unconstitutional proposition had alarmed even conservative-leaning observers.
Two other decisions reached earlier in June by the Court open the possibility of overcoming the gerrymandering in Alabama and Louisiana that hamstrung Black voting power in those states.
The first, Allen v. Milligan created an opening for Black voters in Alabama to have a second winnable Congressional seat among the state’s seven.
Then, in Ardoin v. Robinson, the court dropped the hold it put on a challenge to another GOP-drawn redistricting map, in Louisiana, and returned the case to the lower courts.
‘Packed and Cracked’
Even the typically conservative 5th Circuit had found Louisiana’s GOP-driven gerrymandering too extreme. The state’s population is one-third Black, but its six Congressional districts were so “packed and cracked” in the proposed maps that Black voters were likely to prevail in only one.
Had the Roberts Court not issued a stay on that lower court’s finding in June last year, Louisiana’s Congressional delegation might already look different than what the November 2022 election returned.
In a report issued on the June 25 10th anniversary of the Shelby v. Holder decision, the Southern Poverty Law Center described the immediate, ongoing and increasing damage that resulted, and provided a timeline of particular milestones along the way.
Arbitrary Voting Tests
Pre-clearance required states with a documented history of racial bias in voting rules to submit any proposed changes in voting laws to the U.S. Attorney General or a panel of federal judges for review before they could take effect.
That history of racial bias was originally determined by finding less than 50% voter registration or participation in previous presidential elections, or arbitrary voting eligibility tests.
Congress fine-tuned and reauthorized those VRA requirements repeatedly, for instance, ordering that voting materials be printed in languages other than English when 5% of a jurisdiction’s voting-age citizens relied on another language.
Voter ID
Such adjustments sometimes expanded the reach of preclearance rules beyond the six Deep South states originally covered to include jurisdictions in California, Michigan, New York and New Hampshire, among others.
Between 1965 and 2013, more than a half-million proposed voting law changes were reviewed under the preclearance guidelines, and more than 3,000 were blocked.
In 2006, Congress reauthorized the rule for 25 years, with a unanimous vote in the Senate, but in 2013, Justice John Roberts opined in Shelby v. Holder that the law had been so successful it was no longer necessary.
Alabama instituted a voter-ID rule the next day, and has been joined by 35 other states since. Along the way, some were litigated and found unconstitutional, such as one in North Carolina that an appeals court ruled targeted Black voters “with almost surgical precision.”
Changing Polling Places
Another vote-suppression tactic unleashed by the ending of the preclearance rule has to do with polling places. Between 2012 and 2018, states previously subject to preclearance closed 1,688 of them, often without reasonable efforts to inform the affected communities.
In Georgia, then-Secretary of State Brian Kemp defeated Stacey Abrams by 54,723 votes to become governor in 2018. On his way to the governor’s mansion, his unrestricted changes to polling places, the Atlanta Journal Constitution found, kept between 54,000 and 85,000 voters away on Election Day.
Additionally, states no longer subject to pre-clearance rules purged people from their lists of registered voters at rates far in excess of states never reviewed – costing 2 million people their voting rights in 2016, a Brennan Center finding cited in the SPLC report states.
Voter Purging
Often, the report found, the impacted voters were not made aware of their loss of rights until they tried to vote.
On top of the polling place closures, Kemp purged more than a half-million people from the state’s voter registration rolls – including 107,000 removed on a single day – for not having voted in prior elections.
In 2012, a review of pre-clearance considerations reduced Florida’s attempted voter-purging from 182,000 to 2,600, and the state had been limited to purging at a 0.2% rate in the preceding years. After the Shelby decision, that rate grew to more than 7%.
Black Political Participation
The Moore v. Harper case ruling this year revolved around a redistricting map drawn by GOP legislators in North Carolina that heavily favored their party in an otherwise evenly divided electorate.
But elections last year changed the political makeup of North Carolina’s state Supreme Court, which no longer opposes the state legislature’s gerrymandering, so the new ruling won’t change facts on the ground in North Carolina.
But it dispenses with the argument that only state legislatures can make voting decisions.
“From the end of slavery to present day, significant advancements in Black political participation and representation have often been followed by a swift backlash and retrenchment of rights,” the SPLC report states.
High Voter Turn-out
Although the Moore v. Harper ruling doesn’t reverse the damage inflicted in the decade since the Shelby v. Holder decision, perhaps it marks a turning point against the wave of voter suppression it unleashed.
The Southern Poverty Law Center noted that, despite all the suppression activity in recent years, 2020 saw the highest voter turnout of any election this century, thanks to “states across the nation exploring novel methods to protect access to the vote,” to counter the social distancing restrictions of the COVID-19 pandemic.
“Where there is political will, change can occur,” it said.