Voter Suppression Post-shelby: Impacts and Issues of Voter Purge and Voter Id Laws
| Publication year | 2020 |
Voter Suppression Post-Shelby: Impacts and Issues of Voter Purge and Voter ID Laws
Lydia Hardy
[Page 857]
The old adage that history repeats itself is no truer than when considered in the context of contemporary voting and election law. The history repeating itself within a new wave of legislation is voter suppression that mirrors many issues in the voting rights history of the United States. Since the landmark Shelby County v. Holder1 case in 2013, there has been a marked increase in the passage of new voting laws as well as corresponding court challenges to these laws. Unlike the discriminatory tactics and laws of the Jim Crow era that were banned and declared unconstitutional after the enactment of the Voting Rights Act of 1965,2 contemporary voter suppression has taken on a more subversive and facially neutral quality.
Instead of outright intimidation and tactics like poll tests and taxes, voters are now facing restrictive voter identification (ID) laws, strategic and overactive purging of voter registrations, discriminate closures of polling locations, underfunding of training and equipment for polling locations, and other citizenship-based hurdles to registration and voting. Many of these current voting obstacles have the same or similar effects as those in the past. Because laws enabling these types of voter suppression are often facially neutral, their total disenfranchising effect is not fully realized until the laws have been enacted, operated in real election environments, and then challenged in court. In recent years, responsive challenges to restrictive state voting laws by minority,
[Page 858]
citizen, and voting rights organizations have had some success. But as the enacting Congress of the Voting Rights Act and dissenters of the decision in Shelby knew all too well, the litigation process is far too slow to effectively combat newly suppressive laws enacted as soon as others are struck down.3 By the time a court has found a particular voting law to have suppressive or discriminatory impacts on voters, countless voters have already been prevented and discouraged from exercising their right to vote.
Research into these individual forms of voter suppression shows that suppressive voting laws have an overwhelmingly disproportionate effect on the ability of poor, minority, and immigrant citizens of the United States to exercise their fundamental democratic right to participate in elections.4 The problem of discriminatory and suppressive voting laws, combined with inconsistent judicial and legislative response, has also detrimentally fostered an environment of voter confusion already recognized by the Supreme Court of the United States as a form of voter disenfranchisement.5 In order to combat these contemporary voting rights laws and tactics moving forward, it is important to understand their origins, their impacts, and the progress of current litigation challenging them.
This Comment explores two main areas of controversial voting laws that have been subject to important legal challenges across several states and the future implications of these challenges. Laws that govern the forms of identification allowed for a person to register and vote, as well as laws that govern the removal of persons from voter registration rolls, have both been challenged for their unconstitutional, discriminatory burden on the right to vote on the basis of race, economic status, and citizenship. What these two areas have in common is that, after Shelby, these laws were enacted and enforced at an alarming rate across state legislatures, especially those who were already aware of their discriminatory effect, and that the state legislatures that have supported and championed these laws have consistently cited voter fraud, which these legislatures already had knowledge did not exist. First, this Comment will proceed by briefly detailing events that led to the proliferation of these laws and any major changes. This Comment
[Page 859]
will then discuss some of the most recent and controversial challenges to these laws, followed by an analysis of potential implications of these recent challenges.
In response to the Fifteenth Amendment6 granting voting rights to all citizens, regardless of race, states began to institute various voting measures intended to prevent Black citizens from voting.7 Much like some of the newer voting laws we are experiencing today, new suppressive practices and laws were popping up as soon as others were struck down by slow and expensive litigation. Congress eventually decided to combat this rampant practice of voter disenfranchisement with the Voting Rights Act of 1965 (VRA).8
Sections 4(b) and 5 of the VRA9 were two of the most important and controversial provisions. Section 5 provided that a jurisdiction meeting the criteria for "coverage," as determined by the 4(b) coverage formula,10 could not pass voting legislation without "preclearance" from federal authorities.11 To gain clearance, a jurisdiction had to show that the proposed change had neither the purpose nor effect of denying voting rights based on race.12 The purpose of this section was "to prevent the enactment of discriminatory laws, in part, to preventively solve voter disenfranchisement instead of after-the-fact with costly litigation."13
[Page 860]
In 2010, a covered jurisdiction, Shelby County, Alabama, was denied preclearance for a new voting law.14 The county then sued the Attorney General, seeking declaratory judgment and injunctive relief on the grounds that the preclearance provisions of Section 4(b) and Section 5 of the Voting Rights Act were facially unconstitutional.15 The Supreme Court later granted certiorari to consider the provisions.16
In its 2013 Shelby v. Holder ruling, the Supreme Court held that the formula in section 4(b) used to determine which jurisdictions were "covered" under the Act was unconstitutional.17 The ruling effectively gutted the preventive measures of the VRA. Without a valid statute determining which jurisdictions are covered, there could be no jurisdiction that required preclearance. The Court concluded that "things have changed dramatically" in the almost fifty years since Section 5 was originally enacted making its provisions outdated and irrelevant.18 Unfortunately, for the same classifications of voters who were disenfranchised before the VRA was enacted, racism and racially discriminatory efforts had not changed dramatically enough not to put them back in similar positions of vulnerability absent oversight. Looking to specific areas like voter ID laws and voter purges, the efforts subsequent to the ruling in Shelby show how very little things have changed and how relevant and necessary oversight still is.
From the time the Voting Rights Act was passed until 2008, states have used various informal and formal ways to identify voters at the polls, including matching signatures, voter registration cards, photo identification, and even checking themselves off on a voter roll. The Help America Vote Act (HAVA),19 enacted in 2002, seemed to signal a new wave of voter laws focused on voter identification.20 HAVA requires voters to show ID upon registering or voting for the first time in a jurisdiction.21 The Act still allowed for a broad range of permissible ID forms, as well as a back-up provisional voting mechanism for those who did not have an accepted form of ID, at the polling location on election
[Page 861]
day.22 HAVA, however, leaves within the authority of the states the decision of whether to count the provisional ballots, as well as to enact more restrictive voter ID legislation.23
From 2000 to 2016, thirty-four states enacted voter ID laws further specifying the allowable methods of identification for voters, with variations on how and whether the provisional ballots under HAVA are to be counted.24 The first state voter ID law, enacted in Indiana, requiring state-issued photo identification to vote, was unsurprisingly met with a constitutional challenge in 2008.25 The challenge brought on behalf of "elderly, disabled, poor, and minority voters" claimed that requiring photo identification for in-person voting violated their Fourteenth Amendment26 rights, as it "[I]s neither a necessary nor appropriate method of avoiding election fraud; and that it will arbitrarily disfranchise qualified voters who do not possess the required identification and will place an unjustified burden on those who cannot readily obtain such identification."27
A. Setting the Stage: A Pre-Shelby Ruling on Voter ID law.
The resulting Supreme Court decision in Crawford v. Marion County Election Board28 weighed the burden on voters of having to comply with the photo ID law against the state's interest, and ultimately upheld Indiana's Voter ID law.29 The Court cited prevention of potential voter fraud as weighing in favor of legitimate state interests but noted that "[t]he record contains no evidence of any such fraud actually occurring in Indiana at any time in its history."30 In addressing the concerns of voters, the Court asserted that most people have government IDs and that the burdens were no greater than any previous burdens to vote.31 However, the Court did make a note of the limited record available to establish the burdens on voters, hinting that under certain circumstances such laws could be unconstitutional if the burdens were placed on particular classes of voters.32
[Page 862]
While the court left open the possibility for voters to challenge voter ID laws as applied, this case made challenging voter ID laws much more difficult.33 Not only did the decision in Crawford foreclose the possibility of facial challenges to voter ID laws, but challenges to the laws as applied raise issues of mootness...
To continue reading
Request your trial