The Voting Rights Act of 1965 addressed discrimination in voting by requiring all state and local governments with a history of racial discrimination to get preclearance from the federal government before making any changes to their voting laws or procedures. In 2013, the Supreme Court ruled 5–4 in Shelby County v. Holder that a key provision of the Voting Rights Act, the section that determined which state and local governments must comply with the Act’s preapproval requirement, was unconstitutional and could no longer be used. (Section 5 of the Voting Rights Act required specific states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices. Section 4 of the Voting Rights Act established the formula to determine which state and local governments must comply with the Act’s preapproval requirement.) As Ari Berman and other independent journalists reported, this made 2016 the first presidential election in fifty years without the full protections guaranteed by the Voting Rights Act. The director of media and campaigns for the Leadership Conference on Civil and Human Rights, Scott Simpson, told Mother Jones, “The Shelby decision is when this election began for people of color.”
Specifically, as a result of the Shelby decision, changes to voting laws in nine states and parts of six others with long histories of racial discrimination in voting were no longer subject to federal government approval. Since Shelby, fourteen states, including many southern states and key swing states, implemented new voting restrictions, in many cases just in time for the election. Texas implemented a photo-ID law that resulted in one of the lowest voter turnouts in the country. In North Carolina a voter-ID requirement permitted just a few acceptable forms of identification: According to data from the state’s board of elections, over 300,000 registered voters lacked even one accepted form of ID. Arizona made changes to its voting laws that the Department of Justice had previously rejected due to minority voter discrimination. Florida converted to English-only elections in many counties, and also changed poll locations at the last minute.
In May 2017, Berman reported on an analysis of the effects of voter suppression, by Priorities USA. The analysis, he wrote, showed that strict voter-ID laws in Wisconsin and other states resulted in a “significant reduction” in voter turnout in 2016, with “a disproportionate impact on African-American and Democratic-leaning voters.” (Berman cautioned, “This study was conducted by a Democratic Party–affiliated group and has not been peer-reviewed or gone through the typical academic vetting process.”) According to the Priorities USA data, Wisconsin’s strict voter-ID requirements reduced turnout by 200,000 votes. As Berman noted, Donald Trump won the state by just over 22,000 votes.
Beyond Wisconsin, Priorities USA found additional evidence that newly enacted voter-ID restrictions suppressed the African American vote. For instance, comparing counties where African Americans constitute less than 10 percent of the population, the study found voter turnout rose 1.9 percent from 2012 to 2016 in counties with no changes to voter-ID laws, but decreased by 0.7 percent in counties where voter-ID requirements had become stricter. Similarly, for counties where African Americans make up more than 40 percent of the population, the study found a decrease of 2.2 percent in voter turnout from 2012 to 2016 for counties where ID laws did not change, and a decrease of 5 percent in counties with new voter-ID requirements. As Berman concluded, “This study provides more evidence for the claim that voter-ID laws are designed not to stop voter impersonation fraud, which is virtually nonexistent, but to make it harder for certain communities to vote.”
Although independent publications like Rolling Stone, the Nation, and Mother Jones have covered the impacts of Shelby v. Holder on the 2016 election, the establishment press has not adequately covered the full extent of this change. As Berman noted in an article published by Moyers & Company in December 2016, the topic of “gutting” the Voting Rights Act did not arise once during the twenty-six presidential debates prior to the election, and “[c]able news devoted hours and hours to Trump’s absurd claim that the election was rigged against him while spending precious little time on the real threat that voters faced.”
In May 2017, the Brennan Center for Justice at New York University’s School of Law identified thirty-one states that have introduced ninety-nine bills in 2017 to “restrict access to registration and voting.” Thirty-five of these bills in seventeen states, the Brennan Center reported, have seen “significant legislative action,” meaning those bills have been approved “at the committee level or beyond.” Furthermore, the Brennan Center report noted, “The majority of states acting to restrict voting are legislating on topics where courts previously acted to protect voters.”
Ari Berman, “Welcome to the First Presidential Election Since Voting Rights Act Gutted,” Rolling Stone, June 23, 2016, http://www.rollingstone.com/politics/news/welcome-to-the-first-presidential-election-since-voting-rights-act-gutted-20160623.
Sarah A. Harvard, “How Did the ‘Shelby County v. Holder’ Supreme Court Decision Change Voting Rights Laws?,” Mic, July 29, 2016, https://mic.com/articles/150092/how-did-the-shelby-county-v-holder-supreme-court-decision-change-voting-rights-laws.
Ari Berman, “This Election is being Rigged—But Not by Democrats,” Nation, October 17, 2016, https://www.thenation.com/article/this-election-is-being-rigged/.
A.J. Vicens, “John Roberts Gutted the Voting Rights Act. Jeff Sessions is Poised to Finish It Off,” Mother Jones, November 28, 2016, http://www.motherjones.com/politics/2016/11/voting-rights-act-whats-to-come-jeff-sessions-trump.
Ari Berman, “GOP Voter Suppression and the Trump Win,” part of the feature “The Overlooked, Under-Reported and Ignored Stories of 2016,” Moyers & Company, December 28, 2016, http://billmoyers.com/story/overlooked-reported-ignored-stories-2016/.
Ari Berman, “Wisconsin’s Voter-ID Law Suppressed 200,000 Votes in 2016 (Trump Won by 22,748),” Nation, May 9, 2017, https://www.thenation.com/article/wisconsins-voter-id-law-suppressed-200000-votes-trump-won-by-23000/.
Student Researcher: Kätchen McElwain (University of Vermont)
Faculty Evaluator: Rob Williams (University of Vermont)