In the wake of the U.S. Supreme Court’s 2013 decision gutting Section 5 of the Voting Rights Act (VRA) in Shelby County v. Holder, it took less than two months for Republicans in North Carolina to pass a far-reaching voter suppression bill. The speed with which North Carolina and other states passed restrictive legislation following Shelby County (Texas announced the implementation of a strict photo ID law within 24 hours of the ruling), is a testament to how critical this portion of the VRA was in protecting voters.
At the heart of Section 5 was a provision referred to as preclearance whereby certain jurisdictions, including states, counties and cities, with histories of discriminatory voting practices had to receive preapproval from the U.S. Department of Justice or a federal district court before changing voting laws. In 2013, 15 states — most of which were located in the South — were subjected to preclearance in some capacity.
If the immediate hours and months after Shelby County brought a litany of suppressive measures, what happened in the decade since? In North Carolina, Republicans have spent the last 10 years seeking to pass a photo ID requirement and cement their power with a gerrymandered majority in the state Legislature.
North Carolina was subject to preclearance prior to Shelby County.
Prior to Shelby County, 40 of North Carolina’s 100 counties were subject to preclearance, which meant that all statewide election laws and redistricting plans were also subject to federal review.
However, in a 5-4 ruling on June 25, 2013, the Court’s conservative justices concluded that, since the data used to determine which jurisdictions were subject to preclearance was from 1975, the formula to determine which states were covered had “no logical relationship to the present day” and was an unconstitutional infringement on states’ rights. With the coverage formula struck down, that meant the preclearance process was effectively defanged — and voters were left to fend for themselves.
In his opinion, Chief Justice John Roberts wrote that preclearance was no longer necessary, reasoning that “voter registration and turnout numbers in the covered States have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.” He erroneously concluded: “Nearly 50 years later, things have changed dramatically.”
In a searing dissent, Justice Ruth Bader Ginsburg addressed that paradoxical logic, claiming that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
The end result of Shelby County was that Republican legislators in North Carolina and states formerly covered under preclearance no longer had to seek approval for any changes to election laws.
Republican lawmakers in North Carolina took the toothless VRA and ran with it.
No longer needing to seek permission for new voting laws, Republican lawmakers in North Carolina zeroed in on photo IDs as their primary tool to restrict access to the ballot box. Their journey to passing a photo ID requirement for voting has taken almost exactly a decade, beginning in the immediate wake of the Court’s 2013 decision.
House Bill 589
Two months after Shelby County, North Carolina Republican lawmakers passed House Bill 589, an omnibus voter suppression bill, which:
- Created a new photo ID requirement, which limited valid IDs to a list of eight options;
- Reduced in-person early voting from 17 to 10 days;
- Eliminated the option of out-of-precinct provisional voting;
- Canceled same-day voter registration and
- Removed a pre-registration option for 16- and 17-year-olds.
The law was quickly challenged in federal court. The plaintiffs argued that the provisions discriminated against Black voters, placed an undue burden on the right to vote and targeted young voters.
Ultimately, the 4th U.S. Circuit Court of Appeals struck H.B. 589 down in full for violating the U.S. Constitution and Section 2 of the VRA. Rejecting the state’s claims that the law prevented voter fraud, the court noted that the law affected methods of voting most used by Black voters, leading the judges to conclude that the law appeared to “target African Americans with almost surgical precision.”
Senate Bill 824
Years later, Republicans tried again. In 2018, following the approval of a state constitutional amendment requiring photo IDs, the GOP-led Legislature passed another suppressive voting law that provided a narrow list of qualifying photo IDs. Gov. Roy Cooper (D) vetoed the bill, which was quickly overridden.
Individual voters sued the lawmakers, this time in state court, arguing that this law violated the Equal Protection Clause of the North Carolina Constitution because it was passed with the intent to discriminate against Black voters, much like H.B. 589 attempted to do in 2013. The trial court agreed.
The case then made its way to the North Carolina Supreme Court. In a 4-3 decision in December 2022, the court affirmed the trial court’s decision to permanently strike down the photo ID law because it was enacted with “impermissible” racially discriminatory intent in violation of the state constitution. However, just a few months removed from its initial ruling and only after a new Republican majority took control of the court, the state Supreme Court reheard the case and reversed its decision in a highly unprecedented move.
As the voters who initially challenged the law pointed out, neither “the law nor the facts have changed since this Court issued its opinion affirming the trial court’s judgment on 16 December 2022.”
After nearly 10 years, Republicans finally got their photo ID requirement.
Without preclearance, unfair maps seeped through.
The loss of preclearance didn’t just impact restrictive voting laws; it also left North Carolinians vulnerable to gerrymandered voting districts. Preclearance protected minority voters in a way that no other provision of the VRA does. Under the remaining provisions of the VRA, it is much harder to prove violations and, consequently, easier for states to get away with passing racially discriminatory voting laws and maps.
What’s left of the VRA
Section 2 of the VRA, which prohibits any voting law, practice or map that results in the “denial or abridgement of the right of any citizen of the United States to vote on account of race or color,” relies on the Gingles test to determine whether a state’s redistricting map has violated the provision or not. To prevail in a Section 2 redistricting case, plaintiffs need to satisfy the three specific Gingles factors and additionally prove that the context of the local environment — including the state’s history of racial discrimination in voting, impact of racial discrimination on education and more — denies the minority group an equal opportunity to participate in the political process. All of this makes winning a Section 2 case difficult.
In contrast, the VRA’s preclearance regime used a standard which simply asked, are minority voters worse off than they were before? If yes, these jurisdictions would be subject to preclearance wherein racially discriminatory voting laws and maps would need to be preapproved before going into effect. As a result, preventing the enactment of a discriminatory map during preclearance was much easier than stopping it after the fact through a Section 2 lawsuit. Without preclearance, the difficult path is the only one still available.
This is not to say that preclearance was a perfect tool for blocking discriminatory maps. After all, North Carolina’s maps in 2010 were initially precleared, yet those maps were still in court for years. But the need to seek preclearance offered real protection for voters and acted as a deterrent to lawmakers from enacting truly egregious maps.
On the horizon: A fringe constitutional theory
The loss of preclearance is particularly concerning as Republican lawmakers push the radical legal theory known as the independent state legislature (ISL) theory. If endorsed in the pending U.S. Supreme Court case Moore v. Harper, which originated out of North Carolina, the theory would make North Carolinians even more vulnerable to discriminatory voting laws.
The ISL theory would allow state legislatures to set federal voting and election rules and draw congressional maps without any oversight from state courts. At its strongest, the ISL theory also threatens gubernatorial veto power, citizen-led ballot measures and independent redistricting commissions. 10 years after the end of preclearance, yet another tool to protect voters could be lost.
A loss of legal teeth has led to a breakdown of norms.
The 10 years since Shelby County have led to free for all in the Tar Heel State.
As chair of the North Carolina Democratic Party, Anderson Clayton described it to Democracy Docket, Republicans have “double[d] down on their worst impulses in the absence of federal oversight, diluting the votes of people of color again and again—with surgical precision.” The North Carolina GOP did not respond to a request for comment.
The Republicans’ decade-long mission to pass photo ID requirements has finally been realized this past spring with the North Carolina Supreme Court’s reversal, demonstrating the newly elected conservative majority’s commitment to restricting access to the ballot box any way possible and flipping the democratic process on its head. And it’s not just the state’s highest court that has devolved since Shelby County, the Legislature has fallen prey too.
In April 2023, state Rep. Tricia Cotham (R), who ran and was elected as a Democrat just five months before, switched to the Republican Party. The switch in allegiance gave Republicans a narrow veto-proof majority in the House, on top of the Senate’s preexisting veto-proof majority. Cotham’s party switch has paved the way for the state GOP to pass even more restrictive voting laws.
With this new power, Republicans almost immediately introduced an election bill that contains multiple restrictive measures and language that Gov. Roy Cooper (D) had previously blocked over the last four years. With their veto-proof majority, a friendly state Supreme Court and lack of preclearance, nothing stands in their way.
There is a final lesson to be gleaned from the impact of Shelby County — law is not just what is in the books. It is also what people believe will be enforced. Shelby County provided a permission structure for legislators seeking to suppress voters — permission that Republicans have embraced.