The old adage that history repeats itself is no truer than when considered in the context of contemporary voting and election law. The history repeating itself within a new wave of legislation is voter suppression that mirrors many issues in the voting rights history of the United States. Since the landmark Shelby County v. Holder case in 2013, there has been a marked increase in the passage of new voting laws as well as corresponding court challenges to these laws. Unlike the discriminatory tactics and laws of the Jim Crow era that were banned and declared unconstitutional after the enactment of the Voting Rights Act of 1965, contemporary voter suppression has taken on a more subversive and facially neutral quality.
Instead of outright intimidation and tactics like poll tests and taxes, voters are now facing restrictive voter identification (ID) laws, strategic and overactive purging of voter registrations, discriminate closures of polling locations, underfunding of training and equipment for polling locations, and other citizenship-based hurdles to registration and voting. Many of these current voting obstacles have the same or similar effects as those in the past. Because laws enabling these types of voter suppression are often facially neutral, their total disenfranchising effect is not fully realized until the laws have been enacted, operated in real election environments, and then challenged in court. In recent years, responsive challenges to restrictive state voting laws by minority, citizen, and voting rights organizations have had some success. But as the enacting Congress of the Voting Rights Act and dissenters of the decision in Shelby knew all too well, the litigation process is far too slow to effectively combat newly suppressive laws enacted as soon as others are struck down. By the time a court has found a particular voting law to have suppressive or discriminatory impacts on voters, countless voters have already been prevented and discouraged from exercising their right to vote.
Research into these individual forms of voter suppression shows that suppressive voting laws have an overwhelmingly disproportionate effect on the ability of poor, minority, and immigrant citizens of the United States to exercise their fundamental democratic right to participate in elections. The problem of discriminatory and suppressive voting laws, combined with inconsistent judicial and legislative response, has also detrimentally fostered an environment of voter confusion already recognized by the Supreme Court of the United States as a form of voter disenfranchisement. In order to combat these contemporary voting rights laws and tactics moving forward, it is important to understand their origins, their impacts, and the progress of current litigation challenging them.
This Comment explores two main areas of controversial voting laws that have been subject to important legal challenges across several states and the future implications of these challenges. Laws that govern the forms of identification allowed for a person to register and vote, as well as laws that govern the removal of persons from voter registration rolls, have both been challenged for their unconstitutional, discriminatory burden on the right to vote on the basis of race, economic status, and citizenship. What these two areas have in common is that, after Shelby, these laws were enacted and enforced at an alarming rate across state legislatures, especially those who were already aware of their discriminatory effect, and that the state legislatures that have supported and championed these laws have consistently cited voter fraud, which these legislatures already had knowledge did not exist. First, this Comment will proceed by briefly detailing events that led to the proliferation of these laws and any major changes. This Comment will then discuss some of the most recent and controversial challenges to these laws, followed by an analysis of potential implications of these recent challenges.
Lydia Hardy, Comment, Voter Suppression Post-Shelby: Impacts and Issues of Voter Purge and Voter ID Laws, 71 Mercer L. Rev. 857 (2020)