Voting after Shelby: How a 2013 Supreme Court ruling shaped the 2018 election

Surrounded by a partial crew of her 18 grandchildren and great-grandchildren, Nola Cunningham sits in the recliner at the hearth of her humble house on Yazoo Street. The presence of her family only heightens the dignity of the septuagenarian’s authority.

Ms. Cunningham reminisces about picking butter beans as a teenager, partly for money but also to get away “from really strict parents.” Now this is her place, where country clutter mixes with memorabilia, a broken lawnmower, and a black-and-white portrait of a young Cunningham at graduation.

Seared into her memory are the 1960s protests she participated in as racial tensions flared and Georgia became the cradle of the civil rights movement. In the decades since then, she has held one thing as a constant reminder of her civic value and her sacrifice: her vote.

Last month, Cunningham’s hard-fought dignity was unexpectedly confronted when she and eight other African-American seniors – all potential voters – were ordered by county officials to get off a bus headed to the first day of early voting in Georgia, which stood on the precipice of electing its first black governor.

“Everybody was just excited about riding that big black bus,” she says. 

One moment they were dancing in the parking lot to James Brown’s “Say It Loud - I’m Black And I’m Proud,” “but then someone called the commissioner” and the get-out-the-vote party was over. The ladies filed off the bus. “It was a sense of disappointment,” Cunningham says.

County officials said they believed it was a partisan event. But the group that hired the bus, Black Voters Matter, is registered with the state as a non-partisan organization. Few felt disenfranchised. Cunningham did eventually get to the polls to cast her vote, as did, she says, the other ladies on the bus. Yet, she can’t quite shake the memory of that joyous moment, a celebration of her and her companions’ rights and civic duty, getting cut short.

The incident made national news, adding a murky layer to an emerging portrait of Georgia – one voting rights experts say is not wholly inaccurate – as a state bent on disenfranchising voters of color. That image has taken on a sharper hue with reports of voters arriving at the polls to find that their names had been stricken from the rolls, shortages of provisional ballots, and charges of mismanagement of absentee ballots.

“The sorts of practices that we saw in Georgia conjure up the ghost of Jim Crow,” says Daniel Tokaji, professor of law at The Ohio State University and author of “Election Law in a Nutshell.” “And I don’t mean just for political junkies, but for ordinary people. They look at what happened in Georgia this past election and it is alarmingly familiar.”

A legacy unfolds

Voting rights have stood center stage this past election season, especially in the South, where advocates say some politicians have taken advantage of a loosening of legal restrictions meant to ensure equitable representation at the polls.

To be sure, the 15th, 19th, 24th and 26th Amendments are all in effect to protect every American’s right to vote.

But in 2013, in a case called Shelby County v. Holder, the US Supreme Court took a decisive new stance on voting rights, steering away from former Justice Thurgood Marshall’s idea of the court as an ensurer of racial equity under the law. The high court’s decision repealed a Voting Rights Act mandate that required jurisdictions where voter suppression has occurred in the past to pre-clear voting changes with the Department of Justice.

Within days, states, primarily led by Republicans, began passing new restrictions that would have previously fallen under Supreme Court oversight. In Georgia, Shelby appears to have prompted an escalation in the removal of voter registrations. According to the Brennan Center For Justice, the state purged 1.5 million voters between the 2012 and 2016 elections, double the number removed between 2008 and 2012. This past July, more than half a million voters were removed from Georgia’s rolls. In June, the Supreme Court upheld a similar purge in Ohio.

Since 2012, Georgia has closed 214 precincts, leaving one-third of counties in the state with fewer precincts than they had before the Shelby decision. The closures have been attributed to cost-saving consolidation and to a reduced need for polling stations on Election Day due to an increase in early voting. Many of those precincts were in minority-majority neighborhoods. 

The issue came to a head when the architect of those changes, then-Secretary of State Brian Kemp, a “Trump conservative,” took on former House minority leader Stacey Abrams, who painted herself as the champion of the “unwanted voter,” in a neck-and-neck race for governor.

Critics say thousands were disenfranchised – perhaps enough to have swayed an election where 20,000 votes spanned the difference between a done deal and a runoff. Some 340,000 Georgians may have showed up to vote and found their names expunged, according to investigative journalist Greg Palast, who sifted through the purge lists in coordination with civil rights groups like the Southern Christian Leadership Conference.

On Friday night, Ms. Abrams acknowledged that she didn’t have the votes. Her decision to not file a lawsuit suggested that her impression of unfairness, however, likely would not hold up in court.

The US is now at a moment of gauging and calibrating where to shift the responsibility for ensuring fair elections in the wake of Shelby, voting rights experts say. Judging by Cunningham, the right itself may be as strong as ever, if not by law, by the character of its participants.

“They tell me to vote for the shoe, I’m going to vote for the boot,” chuckles Cunningham. “Nobody tells me what to do, or how to vote.”

The onus shifts

Last Friday, in a brick edifice the size and shape of a municipal pump station, Susan Gray and Natasha Mack were wiping their collective brows.

Ms. Gray, an elections superintendent, and Ms. Mack, her righthand woman, saw more than a hundred voters per day during early voting. For a county so small, it was an avalanche. “It was bigger than [Obama] in 2008 and [Trump] in 2016,” exclaims Mack.

Gray is painfully aware that Republicans believe Democrats are ready and willing to commit large-scale voter fraud. She also knows that Democrats believe Republicans are engaging in wholesale voter suppression.

“It can be hard because people tend to view the election process through who they want to get elected that particular year,” says Gray.

And she is aware that things have changed. She received two letters from then-Secretary Kemp notifying counties that the rules have changed under Shelby. But in the end, only a few votes were disputed, recounted, and added to the total, on Friday. In short, there was no evidence of disenfranchisement in Jefferson County. Quite the opposite, judging by the turnout.

But flanked by an old stand-up voting machine, Gray – who cuts the profile of a kindly but harried librarian –  stands at the intersection of two monumental shifts.

Recent Supreme Court decisions – and the increasingly conservative makeup of the court – have moved the US further away from Justice Marshall’s idea that “the Negro” deserved “greater protection ... to remedy the effects of past discrimination.”

With that change, the responsibility for preserving the integrity of the electoral system has shifted from the courts to local governments, election officials like Gray, and voters themselves.

The decision to scrap the 1965 pre-clearance formula appears to have in some jurisdictions – Georgia and North Carolina particularly – unleashed impulses to game the vote through massive voter purges and other actions under the guise of protecting against voter fraud, says Gilda Daniels who served as deputy chief in the DOJ’s Civil Rights Division under Presidents Bill Clinton and George W. Bush.

Before 2013, “all the decisions in regards to polling place closures, how to count absentee ballots, how to count provisional ballots, all of those would have had to be cleared by the Department of Justice, by the attorney general of the United States,” says Professor Daniels, who now teaches law at The University of Baltimore.

“Now, secretaries of State offices like Brian Kemp’s can make those decisions without ever having to think twice about having to adversely impact a particular group of voters or not,” she says. “Today there is a different illness, but it has the same impact: disenfranchisement of people of color on a wide scale.”

For Daniels – and many Georgia voters – Kemp’s decision to retain his position as secretary of State and chief election overseer while running for office was emblematic of how Shelby has emboldened some Southern politicians.

Kemp’s machinations, however, do suggest that courts still play a role in regulating partisan and racial impulses. US District Court judges have ruled against certain restrictions taken in the name of election security that would disproportionately affect voters of color.

Just days before the Nov. 6 election, US District Judge Eleanor Ross ruled against Georgia’s “exact match” law, which flagged voter registrations where the spelling of residents’ names varied between official documents. Whatever the intent of the law, the effect was that people with Africanized names were more likely to be purged.

“Maybe it is not driven by racial hatred – although we are seeing resurgence of old-fashioned racial hatred – but let’s not forget that vote suppression has always been about self-interest as much as about racial animus – the self-interest of those in power to make it more difficult for other people to vote,” says Professor Tokaji, who has argued several key voting rights cases in the last 15 years.

An electorate electrified

On the other hand, Election 2018 has reminded many Georgians that voting will perhaps forever be a hard-fought right.

All those hours Georgia voters spent waiting in the rain and dealing with poorly prepared precincts amounted to the price of the franchise, voting rights experts suggest.

“At best they are trying to game the election system for their advantage; at worst, they are trying to prevent people from voting,” says Andra Gillespie, a political scientist at Emory University, in Atlanta. Either way, “that’s wrong. That’s a problem. You can’t claim that race doesn’t have anything to do with this when party and race are so heavily correlated.”

Indeed, Michael McDonald, a political scientist at the University of Florida, has found correlations between voting restrictions and decline in participation by some voters. 

At the same time, the will of the people to ensure their voices can be heard has echoed throughout the country.

Voters in Michigan fired politicians from what had become a partisan redistricting process, putting a citizens’ council in place instead to draw fair and competitive districts.

Sixty-four percent of Floridians agreed to automatically reinstate the franchise to released felons. In a state that remains evenly split between Democrats and Republicans, that result means the issue crossed partisan lines.

And more locally, after an uproar, Randolph County, Ga., in August scrapped a consultant’s plan to close seven of the county’s nine precincts just ahead of an election already shadowed by suppression charges.

In that way, says Tokaji, the enduring lesson from Georgia “is likely to be that vote suppression is a double-edged sword. It might help you win a particular election. But the backlash is likely to be much stronger than the number of voters that you’re likely to actually keep from voting in the first place.”

In that way, the post-Shelby era may be defined by an electorate electrified.

“Yes, it is a fight to vote,” says Daniels, the former voting rights deputy chief. “You have to continue to fight. And in some ways that is good. It demonstrates that participation goes beyond Election Day.”