When Chief Justice John Roberts wrote in Shelby County v. Holder (2013) that “things have changed in the South,” he justified striking down a key provision of the Voting Rights Act of 1965. That provision, known as Section 5, required certain states and localities with a history of racial discrimination to obtain federal approval before changing their voting laws. Roberts argued that the formula used to determine which jurisdictions were subject to preclearance was outdated and that the South had made sufficient progress. But a new book, An American Problem, co-authored by Kevin T. Morris, a fellow at the Brennan Center for Justice, tests that hypothesis with massive data. The results are striking: since Shelby County, the racial turnout gap has widened significantly in formerly covered jurisdictions, and hundreds of thousands of voters of color have been effectively disenfranchised. This article explores the evidence, the history, and the implications of the Supreme Court’s decision.
The Promise and Gutting of the Voting Rights Act
The Voting Rights Act was signed into law by President Lyndon B. Johnson in 1965, following decades of struggle against Jim Crow laws that systematically disenfranchised Black Americans. Section 5 was a cornerstone of the Act, requiring jurisdictions with a history of discriminatory voting practices—mostly in the South—to seek federal “preclearance” before implementing any changes to voting procedures. This could include anything from moving polling places to redrawing district lines. The Act was reauthorized multiple times, most recently in 2006, with overwhelming bipartisan support: the Senate voted 98-0, and the House voted 390-33.
However, in a 2013 case, Shelby County v. Holder, the Supreme Court’s conservative majority struck down the coverage formula in Section 4, effectively nullifying Section 5. Chief Justice Roberts wrote for the majority that the formula, which relied on data from the 1960s and 1970s, was no longer constitutional. He acknowledged that “voting discrimination still exists; no one doubts that,” but argued that the South had changed enough to make preclearance unnecessary. Justice Ruth Bader Ginsburg dissented, famously comparing the decision to “throwing away your umbrella in a rainstorm because you are not getting wet.” She warned that the progress was due to the Act itself, and removing it would lead to backsliding.
Testing the Hypothesis: The Data
Thirteen years later, social scientists have been able to test Roberts’s hypothesis with empirical data. In An American Problem, Morris and his co-author, Mike Miller, analyzed over a billion voter records dating back to 2008. Their dataset includes every federal election and allows them to calculate turnout rates by race in every county in the United States. They focused on the racial turnout gap—the difference in participation between white and Black voters—in counties that were previously covered by Section 5. These were mostly in the South, but also included places like Brooklyn, New York, and parts of California.
Before Shelby County, the turnout gap in covered counties was similar to that in demographically comparable counties not covered by Section 5. In other words, preclearance was working to keep participation equitable. After 2013, however, the gap in formerly covered counties grew at about twice the rate as in other counties. By 2020 and 2022, the authors estimate that hundreds of thousands of ballots went uncast by voters of color—ballots that likely would have been cast if preclearance had remained in place. “We’re talking percentage points,” Morris explains, “but they add up to really big numbers.” The data supports Ginsburg’s dissent: the umbrella was indeed protecting against the rainstorm.
The Political and Judicial Maneuvers
The decision in Shelby County did not happen in a vacuum. It was the culmination of a decades-long effort by conservative legal activists to dismantle the Voting Rights Act. Chief Justice Roberts himself, as a young lawyer in the Reagan Justice Department, had worked on challenging the Act’s provisions. During oral arguments, Justice Antonin Scalia candidly called the Act a “perpetuation of racial entitlement,” suggesting that Congress kept reauthorizing it not because it was effective but because politicians were afraid of being labeled racist.
Moreover, after the 2006 reauthorization, Senate Republicans—who controlled the chamber—issued a report questioning the constitutionality of the preclearance formula, even though they had just voted for it. This created a sense that Congress was setting up the Court to do its dirty work. When the Court struck down the formula, Congress made no serious attempt to update it until 2021, when the House passed the John Lewis Voting Rights Advancement Act. That bill would have restored and modernized preclearance, but it stalled in the Senate. Some argue that even if it had passed, the current Supreme Court would likely strike it down. The Court has also weakened other pillars of the Act, such as Section 2, which prohibits discriminatory voting practices, in cases like Brnovich v. DNC (2021) and Louisiana v. Callais (2024).
The Human Impact and the Path Forward
The consequences of these decisions are not abstract. In the absence of preclearance, states and localities have implemented a range of voting restrictions—from strict voter ID laws to polling place closures to purges of voter rolls—that disproportionately affect minority voters. While some of these measures have been challenged under Section 2, the bar for proving discrimination has been raised. The result is a gradual erosion of access to the ballot for communities of color, particularly in the South.
Morris and Miller argue that the situation is dire but not hopeless. They draw parallels to the post-Reconstruction era, when the Supreme Court narrowed the 15th Amendment and Congress failed to enforce it, leading to nearly a century of Jim Crow. However, they also point to the successes of the civil rights movement, which eventually forced the passage of the Voting Rights Act. “We have been here before,” Morris says, “and we can learn from those who fought before us.” He emphasizes the importance of local activism, litigation, and legislative action. Even if the current Supreme Court is hostile, Congress could still pass laws—and with enough political pressure, perhaps even overcome a filibuster.
But there is also a need for broader structural reform. Some advocates have called for nationalizing election administration, but Morris cautions that centralized control could be dangerous, especially with an administration hostile to voting rights. Instead, he suggests that preclearance struck a balance between local autonomy and federal oversight. Restoring that balance, or finding a new one, is essential to protecting democracy. “Having a tool that one administration is not using is better than a world in which that tool is completely broken,” he says.
Conclusion: The Urgency of Action
The data is clear: since Shelby County, the racial turnout gap has widened, and the promise of equal voting rights has been undermined. The Supreme Court’s decision was based on a hypothesis that has now been tested and proven wrong. As the country grapples with ongoing threats to democracy, the need to restore and strengthen the Voting Rights Act is more urgent than ever. The legacy of Shelby County is not just a legal precedent but a call to action. As Morris puts it, “This fight is going to be long and hard, but people have done it before.” The question is whether we will rise to the challenge, or let the umbrella be thrown away for good.
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