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One big question has emerged in the wake of Louisiana v. Callais, the Supreme Court’s ruling this week that knocked down the Voting Right Act’s final remaining major pillar: How bad are things about to get? History is a good guide. Our work has shown that the court’s previous assaults on the act have wrought devastating consequences for voters of color. The impact of this decision likely won’t be different. Minority voters will now be left with a diminished voice in American politics, rolling back half a century of steady progress toward racial equality in voting practices.
The Voting Rights Act is one of the most effective laws in American history. Congress passed it in 1965 to ensure that racial minorities, especially Black Americans in the South, could register to vote and cast ballots free from barriers like literacy tests, poll taxes, and other practices that had long suppressed their political participation. The law and its subsequent reauthorizations ultimately made sure that minority citizens’ votes mattered, outlawing policies, such as gerrymandered maps, that watered down their political power.
For decades, the law gave the federal government both a sword and a shield in the battle against voting discrimination. The sword was Section 2 of the law, which allowed the Justice Department or private citizens to go to court when election laws had racially discriminatory effects. The shield came from Sections 4 and 5, which required states, counties, and cities with a history of racial discrimination against voters of color to get permission from the federal government before they could make even the most routine changes to their elections—including redrawing their political maps. Under this “preclearance” system, a jurisdiction had to show that the proposed change would neither make voting more difficult for racial or ethnic minorities nor dilute their political power.
Preclearance proved to be one of the Voting Rights Act’s most successful tools, blocking thousands of potentially discriminatory policies from ever taking effect. Most were hyper-local rules that may not otherwise have drawn scrutiny, like redistricting plans for city councils and school boards, or polling place changes in small towns. Indeed, as local media declined in the 21st century, the federal government was often the only institution proactively monitoring possible changes like these.
That all changed in 2013. In Shelby County v. Holder, the Supreme Court struck down the formula that determined which jurisdictions would be subject to preclearance oversight, stripping the law of one of its most important tools for rooting out racial discrimination in voting. For the first time in nearly 50 years, jurisdictions that had formerly employed discriminatory election laws could implement any policy they wished, free of the requirement that they first demonstrate that their new policy would not disadvantage minority voters. As we detail in our forthcoming book, that decision undermined nonwhite voters’ ability to elect candidates of their choice and, by extension, to have a say in the decisions that affect their lives. Our findings can tell us a lot about the damage we can expect from Callais in the years ahead.
Our research in the decade since the Shelby County ruling finds a consistent pattern in areas formerly subject to preclearance. Voters are kicked off the rolls at higher rates, resulting in eligible voters being turned away at the polls. State legislatures have also enacted policies such as voter ID requirements and restrictions on mail voting. We find that these and other measures disproportionately burden voters of color. Moreover, many other discriminatory changes are flying under the radar: We find a significant increase in the “racial turnout gap” (the difference in turnout rate between white and nonwhite voters) since Shelby County was decided, and most of this shift is the result of county or town actions, not major state laws that tend to get so much media attention.
Shelby County also impeded votes that were cast from translating into meaningful political power, especially at the local level. We show that after the demise of preclearance, cities that previously needed approval before redrawing their electoral lines altered their approach to annexation (the process by which a city expands its boundaries by absorbing surrounding areas): Many started pursuing annexations that systematically decreased the percentage of minority voters within the new borders.
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Worse, annexations are just one way to dilute minority voters’ power. For instance, majority-white towns that also have concentrated minority neighborhoods might switch from ward-based city council elections, in which representatives are elected from districts throughout the town, to at-large elections, in which all council members are elected by the entire city’s population. This too makes it harder for minority communities to elect their preferred candidates.
Since the Supreme Court gutted preclearance more than a decade ago, the federal government has increasingly relied on the Voting Rights Act’s “sword”—Section 2—to police racial discrimination in the courts. The Department of Justice has used Section 2 to sue multiple states, counties, and school boards that were once covered by preclearance for enacting policies that diluted minority voters’ power. While these cases consume a lot of resources and are not nearly as encompassing as preclearance was, they have been effective. As the Brennan Center has shown, hundreds of city councils, school boards, and county governments across the country, and especially in the South, have moved away from at-large systems as a result of this litigation. But this week’s ruling in Callais has closed off this avenue in many places. The law’s shield is shattered, and its sword is dulled.
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If our research on the court’s prior weakening of the Voting Rights Act is any guide, representation for minority voters will begin to suffer soon, especially at the local level. Many observers rightly warn that Callais threatens minority representation in Congress. But minority voters’ power on school boards and city councils is no less consequential, and may be at even greater risk. For nearly half a century, the civil rights law was incredibly effective in blocking discriminatory policies in counties and towns that might otherwise escape media attention—or whose small populations might lead civil rights organizations to focus scarce litigation resources elsewhere.
There are thousands of such places in America, and in the aftermath of Shelby County, the cumulative impact of local decisions that harm communities of color adds up to significantly worse outcomes for those communities nationwide. With counties, cities, and school boards now free to draw their district lines without fear of federal pushback—and the court’s blessing to gerrymander—history is tragically ripe to repeat itself.
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