Chief Justice John Roberts said it himself back in 2013: “voting discrimination still exists.” Following the 2020 presidential election, this statement rings especially true with states across the country passing laws making it harder to vote. Why, then, did the Chief Justice strike down one of the most important protections the Voting Rights Act provided against voter discrimination in Shelby County v. Holder?
To fully understand Shelby County, one must first understand the history of voting rights in the United States. In my study, I used a comparative-historical analysis of Mississippi (covered by the VRA) and Arkansas (not covered by the VRA) to track the development of voting rights practices and opportunities in these states. Comparing these states over time provided insight into how courts and voting rights protections influence the amount of voting discrimination.
After the end of the Civil War in 1865, Radical Republicans in Congress used Reconstruction to grant equality to newly freed African Americans. Between 1865 and 1870, Congress passed the 13th, 14th, and 15th Amendments to the Constitution, collectively known as the Reconstruction Amendments. The 15th Amendment granted African American men the right to vote in 1870. For the next five years, African Americans experienced what would be their greatest participation in politics for the next several decades. Unfortunately, the end of Reconstruction in the late 1870s coincided with the removal of federal troops from southern states, leaving southern African Americans with no one to protect them politically.
By the 1890s, several states, including Arkansas, began emulating the “Mississippi Plan,” a strategy created during the Mississippi Constitutional Convention of 1890. Looking for alternatives to fraud and intimidation to prevent African Americans from participating politically, delegates at the convention created poll taxes, literacy tests, and grandfather clauses to legally disenfranchise African American voters. For decades afterward, African Americans across the South found themselves effectively shut out from the political process.
After years of protesting by civil rights organizations, Congress finally acted on the problem of voter disenfranchisement by passing the Voting Rights Act of 1965, a structural solution to discriminatory voting laws. The VRA included a coverage formula that covered jurisdictions with less than 50% voter registration or turnout in the presidential election of 1964. Covered jurisdictions needed federal approval, otherwise known as preclearance, before making voting changes. Mississippi was one of several states covered by the formula.
Within a few years, African American voter registration and voter turnout increased dramatically, especially in covered states, but also in noncovered southern states.
In response, southern states began implementing second-generation barriers to voting. These voting changes did not outright disenfranchise like discriminatory voting practices of old. Instead, they sought to dilute the voting power of minority groups by decreasing their chances of electing their preferred candidates. Such measures included gerrymandered districts, shifts from elected to appointed offices, annexations, and shifts from district to at-large systems of voting.
Over the next 68 years, Mississippi voting changes failed preclearance a total of 173 times. Preclearance prevented these discriminatory voting laws from becoming good law. In Arkansas, similar voting changes were enacted since they were not subject to preclearance. In 1976, for example, a proposal to elect city council members through at-large instead of district elections passed in Pine Bluff, Arkansas but failed preclearance in Kosciusko, Mississippi.
In 2013, however, the Supreme Court heard a challenge to the coverage formula and preclearance in Shelby County v. Holder. In the controversial opinion, Chief Justice Roberts invalidated the formula, claiming it was based on data from over 40 years ago that no longer fit the current conditions. States like Mississippi no longer needed federal approval before enacting voting changes.
Immediately after the Court released its decision, states like Texas and North Carolina enacted new voting legislation that previously would have failed preclearance for discriminating against minority voters. Mississippi passed a voter ID law that was in the process of preclearance and seems likely to have been rejected in light of previous failed attempts by South Carolina and Texas.
In Mississippi, an analysis of voter turnout rates among White and African American voters suggests the state may be making it harder for African Americans to vote in comparison to White voters.
While a higher proportion of African American voters than White voters have voted in the state of Mississippi since the 2004 presidential election, this trend had been on a downward decline since 1980 before reverting back towards a higher percentage of White voters in the two presidential elections since Shelby County.
One newer way states have discriminated against African American voters is by constantly moving or reducing the number of polling places. Polling places in Mississippi have decreased in counties across the state since Shelby County. Polling places are especially likely to close in counties where African Americans are near a majority of the population, as African Americans in these counties have the largest impact on deciding the outcome of an election. This makes them prime targets of discrimination.
An analysis of polling places in counties with varying proportions of African Americans reveals that while polling places are closing in all these counties, the sharpest declines are taking place in counties with African American populations ranging from 40%-60% of the general population.
Despite these examples suggesting Mississippi may be returning to its previous ways, I found it especially difficult to find clear evidence of worsening discrimination. Polling place data for states like Arkansas was incomplete. In the years since Shelby County, southern states have lacked significant oversight, making it difficult to track voting changes. In Mississippi, while counties are supposed to notify the Secretary of State about polling place changes, no agency is tasked with ensuring that counties fulfill their obligations.
Discrimination continues to evolve and take shape in new forms. Without the protections provided by the Voting Rights Act, specifically federal preclearance, no institution is properly equipped to analyze new voting changes and how they might impact African Americans and other persons of color.
Only by constantly analyzing voting changes can we truly determine the impacts these changes are having on African Americans and other persons of color. This suggests the need for Congress to pass new voting rights protections in the form of a new coverage formula to restore preclearance and re-strengthen the Voting Rights Act to its previous state.
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