The Impact of Shelby V. Holder in Arizona, Georgia And Texas

The Impact of the Shelby v. Holder Ruling on Restrictive Voter Legislation in Arizona, Georgia and Texas

Amorae Times and Michael J. Nojeim Ph.D. Division of Social Work, Behavioral and Political Sciences, Prairie View A&M University, Prairie View, Texas 77446

Abstract The 1965 Voting Rights Act (VRA) was a landmark law that significantly altered the electoral landscape in the United States. The 2013 Supreme Court ruling in Shelby v. Holder declared a key provision of the VRA unconstitutional. This study posits that Shelby enabled states to pass laws that suppress voter turnout. It analyzed the impact of the Shelby ruling and its effect on restrictive voter legislation and voter turnout. It used a mixed method approach that examines historical documents related to the VRA, contemporary commentary surrounding the Shelby V. Holder Case and quantitative data from various state election offices. The independent variable in this project is the Shelby v. Holder case and the dependent variables are any changes in legislation regarding voting laws and voter turnout following the Shelby ruling. Results show a meaningful impact on the outcome of elections in Georgia and Texas with less impact in Arizona. The study is significant because it unveils post- Shelby voter suppression tactics that weaken democracy.

Introduction The VRA was intended to ensure free and fair elections. Section 5 created a formula to distinguish which states or jurisdictions used discriminatory voting tactics (U.S. Department of Justice 2017). States such as Arizona, Georgia and Texas would have to be precleared by the federal government before passing laws, such as redistricting or photo ID laws, that impacted voting. The 2013 Shelby ruling declared Section 5 unconstitutional: states are no longer required to obtain preclearance for changes to voting laws. Many states have adopted new conditions, such as photo ID and proof of citizenship laws, arguing they are necessary to prevent cheating (Amsterdam, Doner, and Schneer 2014). Restrictive laws are more likely to be passed in states with Republican governors and legislatures (Amsterdam, Doner, and Schneer 2014) and are more common in states with large Black and non-citizen populations and higher levels of minority voter turnout (Amsterdam, Doner, and Schneer 2014). Objective T he objective of this project is to broaden the previous study to include Arizona and Georgia in examining the impact Shelby had on voter turnout.

Hypothesis This project hypothesized that the Shelby ruling enabled states to pass voter legislation that would suppress voter turnout. Methods

This project used a mixed methods approach, combining both quantitative and qualitative analysis. The qualitative aspect analyzed historical documents related to the VRA and contemporary commentary surrounding the Shelby v. Holder case. It also employed a case study approach by tracking post –Shelby voter legislation in the three state cases. Quantitative data was used from various state election offices, including voter turnout figures by racial/ ethnic demographics, and use of figures from other secondary sources. The research approach is designed to first, analyze the impact the ruling had on state legislation, then to identify if state legislation had an impact on voter turnout by demographic.

Summary Georgia confirmed the hypothesis the most. Georgia’s post-Shelby voting legislation and tactics include the following: • Reducing polling stations by 8% (Niesse and

Thieme). • 50,000 voter registrations withheld in Kemp’s office (Lockhart 2018). • 1.5 million voters purged under Kemp with 600,000 of them the year before the election (Lockhart 2018). • Rejected absentee ballots (Lockhart 2018).

Findings indicated that lack of access to polling stations could have contributed to an estimated 54,000-85,000 voters from casting ballots in 2018 (Niesse and Thieme). In the 2018 election, the [then] Secretary of State, Brian Kemp, oversaw the gubernatorial election, while also participating as a candidate running against Stacey Abrams. Kemp had a narrow win against Abrams with a margin of victory at about 1.48 percentage points or 58,000 votes (Almukhtar et al 2018). In Georgia’s case therefore, the evidence strongly points to the idea that if the Shelby ruling had not happened, America would have seen its first black female Governor, Stacey Abrams. Summary

Texas confirms the hypothesis when looking at the 2018 Senatorial election. Pending lawsuits for some voting tactics have left results for their impact inconclusive. Texas’ post- Shelby legislation and tactics include the following: ● Strict Photo ID laws (NAACP Legal Defense

Fund 2019). ● Rejecting voter registrations without an original signature (Ura 2020). ● Encouraging counties to purge over 100,000 alleged “non-citizens” from voter roll (NAACP

Legal Defense Fund 2019). In the 2018 senatorial election, Beto O'Rourke lost to the incumbent Ted Cruz by about 222,000 votes (Essig, Murphy and Formby 2018). With an estimated 600,000 eligible voters lacking adequate photo ID, voter suppression tactics in Texas arguably contributed to Ted Cruz’s narrow victory (NAACP Legal Defense Fund 2019).

Arizona did not confirm the Hypothesis but did unveil important restrictive voter legislation: ● Bans on out-of-precinct voting, discarding out of precinct ballots (Stern 2020). ● Closing 212 polling stations for statewide elections (Arizona Advisory Committee to the

U.S. Commission on Civil Rights 2018). ● Attempts to create a bifurcated voting process, requiring proof of citizenship in Federal, State and Local elections (Arizona Advisory

Committee to the U.S. Commission on Civil

Rights 2018). ● Restrictions on mail-in ballots ( Arizona

Advisory Committee to the U.S. Commission on Civil Rights 2018). ● Lack of access to native language ballots (

Arizona Advisory Committee to the U.S.

Commission on Civil Rights 2018).

Despite efforts to suppress minority votes, voter turnout rose significantly in the 2018 midterm election (Philip 2018). Ultimately electing Kirsten Simena by a narrow margin of victory, a democratic senator in a red state (Akmukhtar et al 2018). This study does not confirm the hypothesis of restrictive legislation yielding lower voter turnout, but uncovers significant post-Shelby legislation that had an impact on voter rights. Future Studies

Studies need to analyze Shelby’s effects after the 2020 census. More states and jurisdictions also need to be examined. Studies can also be done to look at restrictive measures taken in other jurisdictions previously covered by Shelby.

References

Almukhtar, Sarah, Troy Griggs, Adam Pearce, and Karen Yourish. 2018. “See How Close the Results Are in Georgia, Florida and

Arizona.” The New York Times. The New York Times, November 10. https://www.nytimes.com/interactive/2018/11/10/us/elections/2018 -possible-midterm-recounts-georgia-florida-arizona.html.

Amsterdam, Daniel, Richard F. Doner, and Jonathan Schneer. “How

Recent Changes in Voting Laws Threaten Equal Rights in Georgia - And Beyond.” Scholars Strategy Network, January 28, 2014. https://scholars.org/contribution/how-recent-changes-voting-lawsthreaten-equal-rights-georgia-and-beyond.

Arizona Advisory Committee to the U.S. Commission on Civil Rights. 2018. "Voting Rights in Arizona." June 15. https://www.usccr.gov/pubs/2018/07-25-AZ-Voting-Rights.pdf.

“Democracy Diminished”. 2019. NAACP Legal Defense Fund. https://www.naacpldf.org/wp-content/uploads/June-2019-

Democracy-Diminished-Report.pdf Essig, Chris, Ryan Murphy, and Brandon Formby. 2018. “Where Ted

Cruz’s Close Victory over Beto O’rourke Stands among Texas’

Historical Election Results.” The Texas Tribune. November 07, 2018. https://www. texastribune.org/2018/11/07/ted-cruz-betoorourke-texas-history-election results.

Lockhart, P.R. “Georgia, 2018's Most Prominent Voting Rights

Battleground, Explained.” Vox. Vox, October 26, 2018. https://www.vox.com/policy-andpolitics/2018/10/26/18024468/georgia-voter-suppression-staceyabrams-brian-kemp-voting-rights.

Niesse, Mark, and Nick Thieme. “Precinct Closures Harm Voter

Turnout in Georgia, AJC Analysis Finds.” ajc. The Atlanta Journal

Constitution, December 16, 2019. https://www.ajc.com/news/state- -regional-govt--politics/precinct-closures-harm-voter-turnoutgeorgia-ajc-analysis-finds/11sVcLyQCHuQRC8qtZ6lYP/.

Philip, Agnel. “Congratulations, Arizona! Turnout in the 2018

Midterms Smashed Records.” azcentral. The Republic | azcentral.com, November 16, 2018. https://www.azcentral.com/story/news/politics/elections/2018/11/1 6/arizona-midterm-voter-turnout-hit-record-propelled-womenyoung-voters/1994334002/.

Stern, Mark Joseph. “Appeals Court: Arizona Voter Suppression Law

Was Motivated By Racism.” Slate Magazine. Slate, January 28, 2020. https://slate.com/news-and-politics/2020/01/ninth-circuitarizona-voter-suppression-racist.html.

Ura, Alexa. “National Democrats Jump into New Lawsuit over Texas

Voter Registration Requirements.” The Texas Tribune, January 6, 2020. https://www.texastribune.org/2020/01/06/texas-and-nationaldemocrats-suing-state-over-voter-registration/.

U.S. Department of Justice. 2017. "History Of Federal Voting Rights

Laws." https://www.justice.gov/crt/history-federal-voting-rightslaws.

Acknowledgements

R&I’s Office of Undergraduate Research (OUR and Undergraduate Medical Academy, Prairie View A&M University.

Introduction

The Voting Rights Act (VRA) put parameters in place to ensure that voting was equally accessible to citizens. Section 5 of the VRA created a formula to distinguish which jurisdictions within states have been known to use discriminatory voting tactics (U.S. Department of Justice 2017). These jurisdictions would have to be precleared by the federal government before passing legislation that impacted voting. Sections of the VRA could be renewed only with plausible evidence that discriminatory practices were still taking place and affecting voting. In 2013 the Supreme Court declared in Shelby v. Holder that Section 5 of the VRA was unconstitutional. This project is a continuation of an analysis of the impact of Shelby v. Holder in Florida, North Carolina, and Texas states previously subjected to preclearance. This current project added Arizona and Georgia while retaining and updating Texas as a benchmark. It posits the same hypothesis that the ruling enabled states to pass voter legislation that would suppress voter turnout.

Materials and Methods

This project used a mixed-methods approach, combining both quantitative and qualitative analysis. The qualitative aspect analyzed historical documents related to the VRA and contemporary commentary surrounding the Shelby v. Holder case. It also employed a case study approach by tracking post – Shelby voter legislation in the threestate cases. Quantitative data was used from various state election offices, including voter turnout figures by racial/ ethnic demographics and figures from other secondary sources. The research approach is designed to analyze the impact the ruling had on state legislation and then identify if it impacted voter turnout by demographic.

Results and Discussion

Quantitative data indicate the hypothesis was most strongly confirmed in Georgia, where over 50,000 voter registrations, more than half of which belong to black citizens, were reportedly withheld in Secretary of State Kemp’s office who was running for governor against Stacey Abrams. Kemp won by about 1.48 percentage points or about 58,000 votes (Almukhtar et al. 2018). In this case, the evidence points strongly to the idea that, if the Shelby ruling had not happened, America would have seen its first black female governor, Stacey Abrams.

Data indicated that Texas also proved the hypothesis correct in the 2018 senatorial election. Strict voter ID laws restricted an estimated 600,000 eligible voters from casting ballots. In the 2018 senatorial election, Beto O’Rourke lost to the incumbent Ted Cruz by about 222,000 votes (Essig, Murphy and Formby 2018). With over half a million eligible voters lacking adequate photo ID, voter suppression tactics in Texas arguably contributed to Ted Cruz’s narrow victory (NAACP Legal Defense Fund 2019). This study also uncovered significant post-Shelby legislation that had an impact on voter rights. In Arizona, the 9th Circuit Court of Appeals struck down two postShelby election laws saying the laws disproportionately impacted minority voters (Stern 2020).

Conclusion(s) or Summary

This study expands on the previous study and further confirms that Shelby opened the door to increasing states’ ability to use tactics to suppress voter turnout. In some cases, like Georgia and Texas, the tactics appear to have worked, while in Arizona, court rulings have stymied some of the tactics.

References

Almukhtar, Sarah, Troy Griggs, Adam Pearce, and Karen Yourish. 2018. “See How Close the Results Are in Georgia, Florida, and Arizona.” The New York Times. The New York Times, November 10. https://www.nytimes.com/ interactive/2018/11/10/us/elections/2018-possiblemidterm-recounts-georgia-florida-arizona.html. “Democracy Diminished”..” 2019. NAACP Legal Defense Fund. https://www.naacpldf.org/wp-content/uploads/ June-2019-Democracy-Diminished-Report.pdf Essig, Chris, Ryan Murphy, and Brandon Formby. 2018. “Where Ted Cruz’s Close Victory over Beto O’rourke Stands among Texas’ Historical Election Results.” The Texas Tribune. November 07, 2018. https://www. texastribune.org/2018/11/07/ted-cruz-beto-orourke-texashistory-election results. Stern, Mark Joseph. “Appeals Court: Arizona Voter Suppression Law Was Motivated By Racism.” Slate Magazine. Slate, January 28, 2020. https://slate.com/ news-and-politics/2020/01/ninth-circuit-arizona-votersuppression-racist.html. U.S. Department of Justice. 2017. “History Of Federal Voting Rights Laws.” https://www.justice.gov/crt/history-federal-voting-rightslaws.

Amorae Times is a sophomore majoring in Political Science with a minor in social sciences. Dr. Michael J. Nojeim is Professor and Program Coordinator in Political Science with research interests in international politics, Middle East politics, and civil rights.