The Aftermath of Judiciary Misjudgement: How SCOTUS Opened the Window for Resurgence of Voter Suppression

In 2020, the presidential election garnered the highest voter turnout in the 21st century, with an increase in ballots from 2016 to 2020 that totaled 17 million. [1] Additionally, 69% of voters in 2020 used nontraditional voting methods, such as mail-in and early voting. [2] With the outcome of the 2024 presidential election looming, the accessibility of nontraditional voting methods, specifically absentee ballots, is in danger as legislators and political groups seek to restrict these methods operating under the pretense of protecting election security, removing errors and delays, and the claimed “illegality” of these methods. Conservatives in states like Missouri and Pennsylvania have led legal challenges to limit widespread access to absentee ballots as statistics show Democrats are more likely to vote by mail. Recent state-level cases reveal attempts to suppress absentee ballot access, a development facilitated by the Supreme Court’s unsubstantiated ruling in Shelby County v. Holder (2013). [3] The holding in this case disproportionately affects marginalized communities in the form of stricter ID requirements and more stringent mail-in conditions, especially in areas with historically low voter turnout.

The Supreme Court’s ruling in Shelby County v. Holder (2013) dismantled key protections of the Voting Rights Act. This decision set the stage for the resurgence of discriminatory voting practices under the guise of legality. The 1965 Voting Rights Act (VRA) was designed to remove the grip of discriminatory Jim Crow laws in the South and enforce the protections of the 15th Amendment which guaranteed the right to vote regardless of race. [4]

The VRA’s preclearance provision, “required states and localities with a history of racially discriminatory voting practices to submit any changes in their election laws and policies or electoral district maps to the federal government for advance review before putting them into effect.” [5] 

In a controversial 5-4 decision for Shelby County v. Holder (2013), SCOTUS removed section 4(b), the preclearance provision. SCOTUS explained the ruling with the rationale that the current circumstances of voter turnout no longer warranted unequal treatment of states in relation to changes in voting procedure. By “current circumstances”, SCOTUS explained that, in reference to when the 1965 Voting Rights Act was established, decades had passed without discriminatory practices such as literacy tests. As a result, voter turnout had risen dramatically, which in the majority opinion, meant that the VRA was no longer necessary. [6] Justice Ruth Bader Ginsburg argued in her dissent that this decision lacked a factual basis. She clearly explained that voter suppression subsided as a result of the implementation of the Voting Rights Act and that preclearance was essential to maintaining voter equity. Justice Ginsburg cites the 15th Amendments’ alignment with this section of the VRA in that it provides the constitutional foundation for voter protection against discrimination on the basis of race. In effect, the preclearance provision was an extension of the safeguard of the 15th Amendment in practical application such as the eradication of voter literacy tests in the South during the Jim Crow era. She emphasizes the fact that, through Jim Crow legislation, states were able to legally discriminate at the polls and, only until the implementation of preclearance, did those practices cease. Thus, the Court’s past decisions affirmed Congress’ power to enforce the 15th Amendment, making Shelby County’s decision not simply a break in precedent, but also constitutionally inconsistent.

Ginsburg also cited South Carolina v. Katzenbach, which established that Congress can use any rational means to enforce the constitutional ban on racial discrimination in voting. [7] In South Carolina v. Katzenbach, the Court held that Congress has broad authority to protect voting rights and combat racial discrimination. [8] The Court reaffirmed this holding in the City of Rome v US and Justice Ginsburg highlights this point in her dissent when she writes, "this Court has repeatedly reaffirmed Congress’ prerogative to use any rational means in exercise of its power in this area.” [9] It remains evident that dismantling preclearance has enabled states to potentially introduce discriminatory voting laws and challenge existing methods of expanded voter access, including restrictions.

The Shelby decision weakened the Voting Rights Act, directly allowing states to enact restrictive laws, which demonstrates the ongoing need for section 4(b). On the same day Shelby County was decided, Texas implemented a voter ID law which had been previously denied through preclearance. The law stated that “one must show one of a handful of types of identification before their ballots can be counted: a state driver's license or ID card, a concealed handgun license, a U.S. passport, a military ID card, or a U.S citizenship certificate with a photo,” the shortest list of acceptable forms of IDs. [10] The same law was later ruled to be racially discriminatory because it disproportionately affected minority voters by requiring forms of identification that were less accessible to specific groups. [11] Texas’s voter ID law underscored the critical role of preclearance and highlighted the flaws in the Shelby County ruling. Preclearance required states with a history of racial discrimination to justify changes in voting laws before they could take effect, providing an essential safeguard for minority voting rights. Without preclearance, these states possess the ability to implement discriminatory laws without immediate oversight like Texas’ voter ID law.

The Shelby County decision still affects voter accessibility especially in the form of absentee voting, displayed by recent state level cases in Pennsylvania and Mississippi.The rise in minority voter turnout through nontraditional methods has prompted legal challenges aimed at restricting access, enabled by the Shelby County ruling. In the Pennsylvania case Republican National Committee vs. Genser, the RNC and the Republican Party asked SCOTUS to block a ruling by the Pennsylvania Supreme Court which required provisional ballots submitted by voters to be counted if their mail-in ballots had been deemed invalid. [12] Election offices distribute provisional ballots when voters fail to include a required secrecy envelope, a rule that disproportionately leads to ballot invalidation. The Supreme Court deemed it acceptable to, allowthese provisional ballots to count. In ruling against the Republican Party, SCOTUS protected wider voter access to the polls. Although the Court ruled in favor of voter access, this case reflects a broader trend of officials in some states attempting to limit voting participation. Furthermore, a recent case in Mississippi exhibits the effects of the removal of the preclearance section of the Voting Rights Amendment. The US Fifth Circuit Court of Appeals, which encompasses Mississippi, sided with the Republican National Committee to prevent ballots to be counted which are postmarked by Election Day but arrive up to five days after it. [13] The Court ruled that mail-in ballots must be received by Election Day, overturning a provision that had previously allowed a five-day grace period. [14] This ruling disproportionately impacts marginalized groups due to the systemic and infrastructural inequity of polling location availability and limited access to expedited mail services. According to the Brennan Center for Justice, “nonwhite voters’ mail ballots were rejected at much higher rates than white voters’ mail ballots.” [15] This voting procedure unfairly impacts both people of color and other marginalized groups. Preclearance would have likely blocked this change by preventing the continuation of Mississippi’s history of discriminatory practices, illustrating the ongoing need for section 4(b) despite the Shelby decision.

The recent cases in Pennsylvania and Mississippi add to a long line of historic voter suppression efforts in Southern states with a past of restrictive voting practices which target minority communities. Had Shelby County v. Holder been decided differently, the fundamental right to vote—by traditional and nontraditional methods—would be better protected, and access would be broader. These cases exemplify the persistent legal and systemic threats to nontraditional voting methods, especially absentee ballots, which are vital for ensuring fair and equitable voting access. While Shelby opened the door for states to enforce limited voter access, it remains the responsibility of courts and voting rights advocates to safeguard America’s most fundamental freedom: the right to vote.

Edited by Yoona Lee

[1] Fabina, Jacob. “Record High Turnout in 2020 General Election.” The United States Census Bureau, 29 Apr. 2021, www.census.gov/library/stories/2021/04/record-high-turnout-in-2020-general-election.html.

[2] Scherer, Zachary. “What Methods Did People Use to Vote in the 2020 Election?” The United States Census Bureau, 29 Apr. 2021, www.census.gov/library/stories/2021/04/what-methods-did-people-use-to-vote-in-2020-election.html.

[3] Shelby County v. Holder, 570 U.S. 529 (2013)

[4] Congress. "Voting Rights Act of 1965". Government. U.S. Government Publishing Office, June 30, 2008. https://www.govinfo.gov/app/details/COMPS-350/

[5] Michael Li. “Preclearance under the Voting Rights Act | Brennan Center for Justice.” Www.brennancenter.org, 8 Dec. 2020, www.brennancenter.org/our-work/research-reports/preclearance-under-voting-rights-act.

[6] Shelby County v. Holder, 570 U.S. 13 (2013)

[7] South Carolina v. Katzenbach, 383 U.S. 301 (1966)

[8] South Carolina v. Katzenbach, 383 U.S. 328 (1966)

[9] Shelby County v. Holder, 570 U.S. 5 (2013)

[10] Harless , Patricia, et al. SB 14. 25 June 2013.

[11] Veasey v. Abbott, 796 F.3d 487 (5th Cir. 2015)

[12] Republican National Committee v. Genser 604 U. S. 1 (2024)

[13] Republican National Committee v. Wetzel, No. 24-60395 (5th Cir. 2024)

[14] Republican National Committee v. Wetzel, No. 24-60395 (5th Cir. 2024)

[15] Kevin Morris . “Digging into the Georgia Primary | Brennan Center for Justice.” Www.brennancenter.org, 2020, www.brennancenter.org/our-work/research-reports/digging-georgia-primary.