What has Happened Since Shelby County was Decided?

Shelby County declared that Section 4(b) of the Voting Rights Act is unconstitutional. Section 4(b) defined which jurisdictions needed preclearance, or pre-approval of changes to their voting rights laws. Since there is no longer a legal definition of which jurisdictions need preclearance, no jurisdictions are required to have their laws pre-approved.

Section 2 vs. Section 5

The Attorney General can still review election law changes in advance for a state or local government if a court orders this under a different section - Section 3(c) -  of the Voting Rights Act. This is called “bail in.” Lawsuits can still be filed under Section 2 to stop individual discriminatory voting laws before or after they take effect. But that is less effective than reviewing all voting laws in advance under Sections 4(b) and 5. Here’s a comparison of how the sections work:

 

Section 2

Section 5

Applies to all states

Applies only to Section 4(b) states

Lawsuit must be filed for each voting violation

All voting changes are automatically
reviewed in covered jurisdictions

Court cases can be long and costly

U.S. Attorney General must review
proposed laws in 60 days

The opponents, or people AGAINST the law, must prove the law is discriminatory

The proponents, or people FOR the law, must prove the law is NOT discriminatory
 

Law may be in effect while lawsuits against it are waiting for trial, unless the court suspends the law

Law may not take effect until the law under review is pre-cleared by U.S. Attorney General

 

State Responses to Shelby Decision

Some former Section 4(b) states have changed their election laws in ways that probably wouldn’t have passed preclearance before the Shelby v. Holder decision.

For example, the same day that Shelby County was decided:

  • Texas announced it would implement its photo ID law, which had been blocked before by Section 5. The U.S. Attorney General has sued Texas under Section 2 instead.
  • North Carolina passed a law that requires photo IDs in order to vote, cuts back on early voting, and reduces opportunities for voter registration.
  • Alabama also instituted a law requiring a photo ID in order to vote.
  • Mississippi decided to implement its photo ID law, which the U.S. Attorney General had not allowed previously under Section 4(b).