On June 25, 2013, the U.S. Supreme Court disarmed the most effective provision in the Voting Rights Act (VRA) of 1965 that protected against suppressive and discriminatory voting legislation: preclearance. This is the process by which states with a history of racial discrimination in voting were required to submit changes to voting policies for approval by the federal government as mandated by Section 5 of the VRA. These crucial checks and balances put the burden on states to ensure not only that new voting laws did not discriminate against Black voters and other voters of color, but that opportunities to expand voting access were not missed. However, the Shelby County v. Holder decision, which invalidated the coverage formula under Section 4(b) used to determine whether jurisdictions would be subject to preclearance, forever changed the voting rights landscape.
To many, the Shelby decision is the most significant setback in voting rights in the decades since the VRA was passed, as it opened the floodgates for hostile state governments to pass racially gerrymandered redistricting maps, stringent voter ID laws, bans on drop boxes, and other suppressive legislation without federal oversight.
Though, it is important to note that other provisions of the VRA remain intact. For example, Section 2 — which bans racial discrimination in voting and is frequently used by civil rights attorneys to challenge laws that dilute the political power of communities of color — was reaffirmed in June 2023 by the U.S. Supreme Court in Allen v. Milligan, a case filed by LDF challenging Alabama’s 2021 congressional map. The Court ordered the state to redraw the map, and the new map will be used in Alabama’s 2024 elections. However, the fact remains that the Voting Rights Act is still significantly weakened post-Shelby, and has yet to be fully restored.
It has now been over ten years since the Court issued its decision. Amid this landscape, we sit down with four Legal Defense Fund (LDF) voting rights attorneys — two of whom worked directly on Shelby — to learn more about how litigation and policy in this increasingly-challenging environment have changed since the decision was issued.
LDF Senior Counsel
Leah Aden joined LDF in 2012 and has litigated in the civil rights space for nearly two decades. In her previous role as Deputy Director of Litigation, she supervised LDF’s voting rights portfolio, including redistricting lawsuits in South Carolina, Louisiana, and Alabama, among other states. She was also a core member of LDF’s Shelby team.
LDF Deputy Director of Litigation
LDF Senior Policy Counsel
LDF Director of Litigation
Samuel Spital has served as LDF’s Director of Litigation since 2017. During his tenure, he has led LDF’s litigation portfolio and served as lead counsel on multiple high-profile cases, including LDF v. Trump and NAACP v. USPS. Previously, he served as co-counsel to LDF in Shelby County v. Holder.
Aden: I would say since the Shelby County decision, we have so much more work to do just to defend what we had before, because people are eliminating opportunities [to expand voting access] where they exist. Then there’s just the stuff that we do not know about because of this avalanche that we’ve been experiencing that is the most alarming, damaging, disenchanting aspect of the decision that remains. It is like drowning in an ocean and trying to paddle our way to the top to save ourselves until the big ship comes, which is the Voting Rights Act renewal. We’re treading water.
Ross: The burden is now on the plaintiffs to both find and identify voting rights issues as they come up. The burden’s on them to prove that the law is discriminatory before it can be implemented or even after. It is that much harder to win these cases even when there is overall evidence that a law is or could be discriminatory.
Evans: The Shelby decision also put pressure back on Congress to reauthorize and restore the Voting Rights Act. When the VRA was passed, it was reauthorized several times — most recently in 2006 under President George W. Bush with strong support from the Congressional Black Caucus and many senators from states that were protected under the previous preclearance formula. And so, the pressure since Shelby has been back on Congress to get a stronger Voting Rights Act passed that restores Section 5 to its previous glory.
Aden: One that you might not expect is the restoration of voting rights in Florida for returning citizens. Amendment 4 in 2018 changed the standard and said you retain your right to vote except in exceptional circumstances, like if you have a murder or felony sexual offense. Following Amendment 4’s passage, more than a million people were expected to be enfranchised. But then, within six months, the state comes in and interprets that requirement to include these monetary obligations. That is one of the biggest civil rights issues happening in the state, is the way that people changed the constitution to enable returning citizens to vote and the state has tried every strategy since then to undermine that. Previously, [these state efforts] would have been subject to scrutiny, just as Florida’s law restricting absentee voting and line relief would have been.
Spital: We can’t know specifically how any particular case would’ve played out, but I think a really good example of the phenomenon you’re asking about is what happened in the wake of the 2020 election. So, the 2020 election has been widely recognized to be extremely safe, extremely secure — no evidence whatsoever of any significant voter fraud. But because of racially-targeted attacks in which some people hostile to voting rights sought to claim falsely that there was significant voter fraud and used that false premise to encourage support for new voter suppression laws in a number of states — including a number of jurisdictions formerly covered [by preclearance] — legislatures passed new restrictive laws in states like Georgia and Texas. And they did so in ways that would limit access to the ballot where Black voters and other voters of color had been most effective in using those methods to achieve access to the ballot.
So, in a place like Georgia where voting lines are extremely long and also racially disproportionate — Black voters on average have to wait in line longer than white voters — some of the things that have been very important in achieving improvements to turnout for Black voters were to have other mechanisms [to vote outside of Election Day in-person voting]. Drop boxes, for example, where Black voters could submit absentee ballots.
And, so, when in response to this false narrative of voter fraud, Georgia sought to pull back some of those methods, that’s exactly the kind of thing that at least a properly interpreted Section 5 would’ve prevented because it would’ve blocked a change that was retrogressive, that was putting Black voters in a worse situation than they had been. Therefore, you have a situation where, had Section 5 been in place and properly interpreted, at least it would’ve likely blocked the discriminatory change in the first place. Now it is two or three years after that law was enacted and we are still fighting to try to block the law.
Evans: Well, first and foremost, restoring the Voting Rights Act to its former glory through federal legislation, but also passing state voting rights acts so that even if there aren’t federal protections, voting rights of minority communities can still be protected at the state level.
Ross: A southern state which now has a fairly robust voting rights law is Virginia. So, if in the future, Virginia does pass discriminatory laws, as it has done with a voter ID law and discriminatory redistricting, those laws can now be challenged under the state voting rights act. State voting rights acts have also been passed in places like Washington, California, and New York – and both California and New York were previously subject to preclearance, so those are really important jurisdictions as well.
And then, additionally, state constitutional provisions [can be useful tools]. So, in Mississippi, we are working on a case in which the Mississippi legislature is stripping the right of local Black voters in Hinds County to elect their circuit judges. So, we’re challenging it under state constitutional law rather than federal law, as the state constitution requires that state court justices be elected.
Aden: This has always forced us to be creative. We’re using other provisions in the Voting Rights Act, such as the intimidation provisions under Section 11(b) — we used that in North Carolina, where voters were intimidated on their way to the polls. We’re thinking about the Ku Klux Klan Act in the way that people are conspiring to prevent individuals from accessing the voting process. We’re using the Americans with Disabilities Act for [how] voter suppression laws are impacting people with disabilities, which includes people of color. We’re using the materiality [provision] of the Civil Rights Act, which addresses adding immaterial requirements to the voting experience, such as asking people for their date of birth at multiple stages of the election process. And we’re using the First Amendment [to challenge line relief bans]. So, for example, providing line relief is not only about giving people water when they are waiting in line to vote; it’s also about communicating a message to people that we believe in your dignity while voting. We’re harnessing many, many different tools and ways that we’ve always used. These are always claims that LDF has used.
Evans: It starts with organizing. LDF’s community organizers are the ones who educate the public on the census and how important that is. And LDF’s policy team works with the organizers to get folks to turn out to testify and to participate during the redistricting process. Public education comes in when we educate the communities that we work with that the way that their elected officials get to where they are, that the way they get to power starts with the census, continues through the redistricting process, and goes through the election. So, getting people to understand the importance of the census, how important it is to fill that out, fill it out accurately, as well as how important it is to participate in the redistricting cycle. [This is all critical so we can] let elected officials know that the community is watching. I think those are all tools that we have available to us.
Spital: Shelby was a very difficult decision. It was a difficult case to work on, most importantly, because you knew that you were seeking to be a part of a team defending this historic and essential civil rights law. We also were faced with a Supreme Court that, from my perspective, did not fairly kind of consider the law in light of the precedent. And it was also one very significant case where you saw a real overreaching by the Supreme Court where it substituted its judgment for Congress’ judgment, when it is really Congress and not the Supreme Court that has the responsibility under the Constitution to enforce the 14th and 15th Amendments.
So, that was in some ways a prologue to things that the Court has done in similar veins since then. I think that we have sought to figure out other ways to challenge the kinds of discriminatory laws that we are still seeing. But we have, I think, tried very hard to make sure that we are thinking about all tools in the toolbox to continue to fight against racial discrimination in voting within litigation, in terms of policy advocacy, and in terms of organizing. And so, I think it sort of underscored for me personally, and I think for LDF organizationally, the importance of all these different tools, and even more fundamentally working together throughout the organization.
Evans: I was a law clerk during the 2011 redistricting cycle in Louisiana as the legislature was going through its redistricting process. And one of the memories that sticks out the most was the debate on each map — particularly when it came to majority Black seats — on how many to draw. The focus was on what the Justice Department was going to do, right? Members would go to the floor and say, ‘The Justice Department isn’t going to approve this, the Justice Department isn’t going to approve that.’
So, I learned very early that [pre-Shelby], preclearance was a major part of the discussion. Everyone wanted the Department of Justice to approve their plans the first time. So Section 5 was a major deterrence and prevented some of the worst instincts of state actors. Two years later, in 2013 when Shelby came down, it didn’t register with me immediately that this layer of protection that just two years prior had prevented so many of the worst plans and worst maps from becoming law had essentially been stripped away. It’s made the policy work much more important and that’s really one of the reasons why I chose to go into policy.
Aden: I think it has required us to consider our partnerships and allies even more and expand them so that we can try to do as much as possible with [the tools that we have]. But, I also think about the things that we haven’t been able to do because we’ve been so busy trying to hold the line. And I think so many of the folks who work at LDF come from a tradition where people envision a world on the other side of things. They envision a world post-Brown. They envision a world with equality in the workplace. They envision a world on the other side of mass incarceration. They envision a world without the disenfranchisement of returning citizens.
This is the tradition of people envisioning and trying to work more affirmatively for a world that didn’t exist. We have less time to be affirmative and creative for the world that we actually want to live in when we’re trying to get to a world with some basic norms and some basic standards for democracy. I look forward to having more tools and more justice so that we can work on trying to get to realize a world that is more perfect than the one that we’re living in now.
Ross: The orient of discriminatory voting laws that have been unleashed since Shelby County has brought a lot of different actors into the space of voting rights litigation that didn’t exist in the past. And I think it’s really important that LDF — as an institution that has a long history of litigating these issues and as an institution that was founded by Black people and primarily staffed by Black people and other people of color — continue to have a strong role in that litigation.
Evans: When it comes to bringing Section 2 cases, it is crucial, if not essential, to have a strong legislative record. Where previously, before Shelby, there perhaps wasn’t so much of a focus on the letters that we submit [to government officials] or testimony [before state legislatures] or the debate on the floor and in committee during the legislative process. But now the policy work and the litigation work [go hand in hand]. Because when you see us file a case, when you see LDF on the docket, we didn’t just show up in Alabama or Louisiana or Mississippi and decide this is where we’re going to file a case. Months and oftentimes years of organizing went into preparing before we even got to file. And I don’t think you would’ve seen so much cross-collaboration and intermingling of all of our various tools and departments previously.
Ross: I like to think about my grandmother who’s 94 years old and she’s lived her entire life in and around Houston, Texas. For basically the first 36 years of her life, she couldn’t vote in Texas or it was incredibly difficult to vote. It wasn’t until she was nearly 40 that the poll tax didn’t exist in Texas. And throughout her 40s and into her 50s there were a number of discriminatory barriers to voting, like annual registration, limited periods of time in which to vote, and things like that.
And so, I just think about opportunities to vote for African Americans in this country, particularly in the South. For most of the past 100 years that my grandmother has been alive, half of it was nearly impossible for her and people like her to vote. And the other half was sort of a cycle of opportunities expanding and then contracting, even in what we think of as a robust time of voting rights like the 1970s and ‘80s. And then obviously to see the frustrating retrenchment now is the challenging part about being a voting rights lawyer. To think about how quickly the Supreme Court and other courts can erode the rights that people fought and died for.
Aden: It’s a gift to be able to do this work. I always say our clients entrust us with bringing justice when they themselves have been fighting for it and haven’t gotten it. I think it’s just incredibly important. We cannot do it alone, but I think it’s deeply humbling, deeply gratifying, deeply difficult. But I wouldn’t be doing anything else. This is exactly who I am and what I’m supposed to be doing.
Spital: The decision makes clear that there is a meaningful check on state and local bodies that seek to draw maps that won’t give Black voters and other voters of color a fair chance to elect candidates of their choice. It is no replacement for Section 5, but it is likely to deter discriminatory redistricting in some jurisdictions and provide a remedy when discriminatory maps are implemented in others.
Ross: Milligan shows that LDF and our clients’ continued advocacy can still result in meaningful victories in the courts, state legislatures, and local communities that bring our country closer to the inclusive, multiracial democracy that we deserve. It also signals to the lower courts and the public that the Voting Rights Act remains an important and necessary tool for protecting the rights of Black voters.
Long before Shelby, LDF was a leader in the fight for voting rights. While the loss of preclearance cannot be understated, LDF and its partner organizations have had much success litigating on behalf of Black communities since the decision. These wins underscore the continued need for LDF’s presence in the courtroom, even when the odds seem stacked against us. Still, Shelby significantly impacted how LDF attorneys approach this work both personally and professionally. Hostile state governments across the country continue to pass legislation that targets Black voters, voters with disabilities, young voters, and many others with the intent to shrink their political power. Yet litigation is not our only tool – we must demand voting rights from every angle. Public education, peaceful protest, community engagement, and organizing all play a role in realizing a world where everyone thrives, with their rights fully realized. Until preclearance is restored and well beyond, the fight to protect and advance voting rights will continue – with LDF, its allies, and community members at the forefront.
Shelby County v. Holder was a challenge to the constitutionality of Sections 4(b) and 5 of the VRA and ultimately dismantled key protections of the VRA.
The Shelby decision opened the door for the implementation of restrictive voting laws and racial gerrymandering that have severely harmed Black voter power.
Without federal protections, voters of color, voters with disabilities, and vulnerable communities will be further silenced by strategic and manipulative efforts to suppress their vote.
With the passage of State Voting Rights Acts (VRAs), states can provide key protections to their constituents that prevent and guard against discriminatory voting practices and policies.
On June 8, 2023, the U.S. Supreme Court issued its decision in Allen v. Milligan and upheld the previous unanimous district court’s determination that Alabama’s maps violate Section 2 of the Voting Rights Act.
Juneteenth serves as a call to action. Its profound significance reminds us that the fight for racial equality continues amid our pursuit of full, inclusive participation in our nation’s democracy.
