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Essay: A Historical Overview of Disenfranchisement, the Voting Rights Act, and Shelby County’s Impact on the 2018 Midterm Elections

By Sean McGrath on Thursday, March 21st, 2019

For nearly four decades, Section 5 of the Voting Rights Act required certain states and localities to garner pre-approval prior to implementing any changes in laws that affect voting.[1] That has all changed with a Supreme Court decision in 2013.[2] Since that time, instances of subtle (or not so subtle) voter discrimination has taken place in our country, especially in those states with a history of disparaging minorities. States who have implemented these subtle or arbitrary voting procedures have done so mostly for the same reason: reduce the black minority vote. In Southern states although all of the traditional campaign goals, such as fundraising, coalitions, and identifying policies that resonate with a broad range of voters, still matter for candidates, what really matters is the game of black votes.[3]

A study found that in Georgia, African-American men are disenfranchised statewide at a rate of about 12.6%, more than six times the 2% rate for other men nationwide.[4] In the recent 2018 gubernatorial election between Stacey Abrams and Brian Kemp, it was reported by the Associated Press that Kemp’s office (Georgia Secretary of State’s Office) was blocking 53,000 registrations from voting – 70% from African-Americans, 80% from people of color.[5] This system by Kemp’s office is recognized as a “exact match” system, where a voters information must be identical to the name in the state’s system. However, this type of exact match system is referred as “disenfranchisement by typo” because, when submitting a voter registration form, if a person has a hyphen missing on their name, or a missing apostrophe, or if you use “Steve” on one form and “Steven” on another, that registration form is going to be blocked by the state election officials of Georgia.[6] It is interesting to note that Georgia had first tried to put this policy in place in 2009, but, thanks to the Voting Rights Act, the Justice Department blocked this exact match system from going into effect because they found it discriminatory against minority voters – who would be more likely to be flagged by this system.[7] So, what happened? How did this then get passed? It’s a simple answer: the Supreme Court’s decision to strike down key provisions of the Voting Rights Act of 1965 in Shelby County v. Holder (2013).

This essay will first examine the history of voter disenfranchisement from Reconstruction through the Civil Rights movement. Next, this essay will look at the passage of the Voting Rights Act of 1965, including its purpose and immediate impact. This essay will then proceed to examine the Supreme Court’s 2013 decision in Shelby County v. Holder. Lastly, this essay will look at the past 2018 midterm election, which will focus on Georgia’s gubernatorial election and how Shelby County impacted the electoral process.

Historical Overview Of Disenfranchised Voters, 1868-1965

The end of the Civil War introduced two federal constitutional amendments, which aimed to provide African Americans the right to vote,[8] and equal protection of the law.[9] However, the end of the Civil War introduced an expansion of suffrage to black men and introduced disenfranchisement as a major obstacle for newly enfranchised black voters.[10] The term “disenfranchise” is defined as “to deprive of a franchise, of a legal right, or of some privilege or immunity; especially: to deprive of the right to vote.”[11] Historians note that two interconnected trends led to increased voter disenfranchisement: first, lawmakers – especially in the South – passed a handful of new criminal laws designed to target black citizens; second, and nearly simultaneously, many states enacted broad disenfranchisement laws that revoked voting rights from anyone convicted of a felony.[12]

The new criminal laws were identified as “Black Codes,” and played a large part in the widening disparities in incarceration rates; for example, in Alabama, the percentage of non-white prisoners jumped from two percent in 1850, to seventy-four percent by 1870.[13] Not only does felony disenfranchisement still exist today, but the number of African Americans disenfranchised has increased drastically in recent decades as mass incarceration has increased.[14]

Besides felony conviction laws, Southern states devised an array of techniques to disenfranchise black voters in the Reconstruction era. From 1868-1888, the principal techniques were illegal, based on violence and massive fraud in the vote counting process.[15] In 1873, federal prosecutors indicted 3 of a group of white men for murdering over 100 African Americans who were assembled to defend Republican officeholders against attack in Colfax, Louisiana.[16] These horrid acts were left unjust, however, as the Supreme Court dismissed the indictments for them failing to identify a right guaranteed by the federal government that had been violated in the slaughter.[17] The election of 1868 in Georgia, saw the Republican vote total decline by over twenty percent.[18] Although Georgia Democrats claimed this was in part of their efforts to win black votes away from the Republicans, it was more an effort to “eliminate black votes” through intimidation and violence, including the activities of the Ku Klux Klan.[19]

Electoral fraud by ballot box stuffing, throwing out non-Democratic votes, or counting Republican votes as votes for Democrats, was the norm in the Reconstruction South.[20] Unsurprisingly, the Supreme Court in U.S. v. Reese failed to protect black voters from election fraud. In that case, two inspectors of elections in Kentucky were indicted for their refusal to receive and count any vote of a black candidate in a city election.[21] The Supreme Court dismissed the indictments on the grounds that the Enforcement Act of 1870’s provisions for punishing state election officials for depriving voting rights[22] exceeded the power of Congress to regulate elections.[23] By narrowly interpreting legislative and executive Reconstruction power, the Supreme Court decisions during this era paved the way for the federal government to withdraw from the field of substantive civil rights enforcement for nearly a century.[24]

Other techniques by Southern states included literacy tests, arbitrary registration practices, and poll taxes. In 1890, states began to adopt explicit literacy tests to disenfranchise voters, which had a vast differential racial impact since 40-60% of blacks were illiterate (compared to 8-18% of whites).[25] Due solely to white illiterates opposing the literacy tests, Southern states adopted either: (1) an “understanding clause,” which entitled voters who could not pass the test to vote, provided they could demonstrate an understanding of the meaning of a passage in the constitution to the satisfaction of the registrar; or (2) a “grandfather clause,” which allowed white illiterates to vote if they were descendants from someone eligible to vote in 1867, the year before blacks attained the franchise to vote.[26] Additionally, Southern states made registration to vote a difficult process, by requiring frequent re-registration, long terms of residence in a district, registration at inconvenient times, and provisions of information unavailable to many blacks (e.g. street addresses – many black neighborhoods lacked street names and numbers).[27]

Throughout the Reconstruction era, Georgia’s Democratic party were shrewd manipulators of their black supporters, as well as exploiters of the race issue in politics.[28] In 1871, Georgia initiated a poll tax, and in 1877, made the poll tax cumulative – requiring citizens to pay all back taxes before being permitted to vote.[29] The purpose of the tax was plainly to disenfranchise, not to collect revenue. Georgia achieved their goal, as it is estimated that the poll tax reduced overall voting turnout by 16-28%, and black turnout was cut in half.[30] By 1904, every former confederate state followed Georgia in implementing a poll tax.[31] Poll taxation went unchallenged until 1937, when a white male brought suit against Georgia’s poll tax for violating the 14th and 19th Amendments.[32] The Supreme Court rejected his arguments claiming that the tax had no relation to any attempt to disenfranchise voters.[33] It was not until the passage of the Voting Rights Act of 1965 when poll taxes in state elections were prohibited.[34]

The disenfranchisement of black voters, especially in the South, continued from post-Civil War all the way to the Vietnam War era. In 1900, North Carolina voters amended their state constitution to require that all new voters “be able to read and write any section of the Constitution in the English language.”[35] In 1927, the legislature of Texas enacted a statute declaring that the State Executive Committee of the Democratic party permits only white Democrats to participate in its primary election.[36] In Grovey v. Townsend, the Supreme Court upheld this “one-party rule” to exclude blacks from the Texas Democratic primary, based on it finding that only private parties, not state actors, were involved in determining primary electors.[37] The state of Alabama made relentless efforts to block the black vote, which ultimately rendered the black voter registration virtually impossible entering the 1960’s.[38] Alabama made requirements such as blacks to recite from memory sections of the Constitution, literacy tests, cutting voting registration period to two days each month, voter identification requirement – whereby two white registered voters had to vouch for each new applicant, and a cumulative poll tax.[39] In 1965, out of the 15,000 voting-age black people in Dallas County, Alabama, only a mere 335 were registered to vote.[40] In another neighboring county, out of a black population of eighty percent, not a single black person was registered.[41] Ultimately, however, the Civil Rights movement paved the way for Congress and President Johnson to pass legislation protecting minority voters’ constitutional right to vote.

The Voting Rights Act of 1965

On Sunday, March 7, 1965, six hundred peaceful marchers set out from Selma, Alabama fifty-four miles to Montgomery to demand access to the right to vote.[42] The events that took place that day – now known as “Bloody Sunday” – were mandated by an order of then Governor George Wallace for hundreds of state troopers to prohibit the march, at all costs and with force.[43] The vicious attacks captured the attention of the nation as they were broadcasted on national news broadcasts that night.[44] In response to Bloody Sunday, President Johnson addressed Congress,[45] and urged that “every American citizen must have an equal right to vote.”[46] And thus began the drafting of the Voting Rights Act of 1965, which was signed into law on August 6, 1965.[47]

The Voting Rights Act is considered by some to be the most influential legislation passed by Congress in the twentieth century, which enforces the guarantee of the Fifteenth Amendment in any state.[48] The key provisions of the statute were contained in Section 2 and Section 5,[49] which enacted a nationwide prohibition of any denial or abridgement of the right to vote based on race or color.[50] The “heart and soul” of the Voting Rights Act, Section 5, required all  15 jurisdictions listed to obtain preclearance from the Department of Justice or a three-judge panel of the District Court for the District of Columbia before enacting voting changes.[51] Preclearance would be granted only after it was demonstrated that voting changes a state sought approval for were not discriminatory, or would not otherwise worsen the position of voters of color.[52] The extent of Section 5’s application rested upon Section 4’s jurisdictional coverage formula, which identifies the areas where voting discrimination has been most prevalent.[53] Section 4’s formula covered Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and in many counties of North Carolina, where voter registration or turnout in the 1964 presidential election was less than 50 percent of the voting-age population.[54] Section 5 applies broadly to all standards, practices, and procedures that affect voting, no matter how minor.[55] Changes that affect voting include, but not limited to: change in methods of election, redistricting plans, annexations, rules for candidate qualifying, procedures for casting write-in votes, and locations of polling places.[56]

The immediate effect that the Voting Rights Act had directly on black voters, was a significant increase of voter participation.[57] In Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina and Virginia, the black voter registration rate double from 33.8% in 1964 to 56.6% in 1968.[58] Additionally, the number of black elected officials increased nearly fivefold between 1965 and 1970.[59] The Voting Rights Act not only led to substantially higher turnout at the polls, but also protected voters of color from new forms of racially discriminatory voting procedures. The drafters of the Act “recognized that increased black voting strength might encourage a shift in tactics of discrimination…[o]nce significant numbers of blacks could vote, communities could still throw up obstacles to make it difficult for a black to win elective office.”[60] More recently, our nation encountered another historical moment in part thanks to the Voting Rights Act – the election of a black President of the United States, twice.[61]

In response to increased black political participation, many states made concerted efforts to weaken the strength of the black vote.[62] With the existence of new voting manipulations, including annexations, adoption of at-large elections, gerrymandering and other structural changes to weaken the black vote, kept in mind, Congress reauthorized Section 5 in 1970 for five more years.[63] And in 1975, Congress again extended the preclearance requirements for another seven years.[64] These reauthorizations were in part thanks to the Supreme Court’s expansive interpretation and validity of Section 5.[65] In South Carolina v. Katzenbach,[66] the Warren Court expressly addressed and rejected the argument that Section 4(b) of the Voting Rights Act violated the equal sovereignty doctrine by subjecting only certain states to the preclearance requirement.[67] In rejecting this argument, Chief Justice Warren held that Section 4(b)’s coverage provision was rational and constitutional because it was crafted in response to “reliable evidence of actual voting discrimination.”[68] After the reauthorization of Section 5 in 1975, the Supreme Court considered whether Katzenbach had been correctly decided and whether Section 5 continued to represent a proper exercise of Congress’s enforcement power.[69] The Court affirmed the Katzenbach decision finding that Congress could provide a broad remedy to protect voting rights so long as the legislation was appropriate.[70] Further, the Court stated that the Civil War Amendments “were specifically designed as an expansion of federal power and an intrusion on state sovereignty.”[71]

In 1982, Congress determined the purpose of the Act was to remove barriers to voting, and also amended Section 2 of the Act to allow further claims of discriminatory districting techniques to stand based on a finding of discriminatory impact on minority voters.[72] More importantly, the 1982 amendments also extended Section 5 coverage for another twenty-five years.[73] With increased political participation by the black population, and the Supreme Court upholding the constitutionality of the Act’s provisions at each turn, it appeared that the Voting Rights Act would reign as the greatest piece of civil rights legislation for the ongoing future to protect minorities from a state depriving them of their constitutional right to vote. However, as it turns out, history has a way of repeating itself.

Shelby County v. Holder (2013): The End Of Preclearance Requirements

When Congress against reauthorized the Voting Rights Act in 2006, the Supreme Court had held for over four decades that the statute was constitutional.[74] However, the tide began to shift for voting equality with the Supreme Court under Chief Justice John Roberts.[75] In a 2009 decision, although not reaching the issue of the Voting Rights Act, the Roberts Court claimed that Section might be overbroad and that “[t]hings have changed in the South…the Act’s preclearance requirements and its coverage formula raise serious constitutional questions.”[76] Moreover, the Court asserted the argument once addressed in Katzenbach, that “our historic tradition that all the States enjoy ‘equal sovereignty’” in their skepticism of the Act’s validity.[77] The skeptical opinions of the Roberts Court paved way for a case that would depart from long-standing precedent and constitutional values: Shelby County, Alabama v. Holder.[78]

In 2010, Shelby County sued the U.S. Attorney General in federal district court in Washington D.C., seeking a declaratory judgment that Section 4(b) and Section 5 of the Voting Rights Act are facially unconstitutional, and also a permanent injunction against their enforcement.[79] While the D.C. district court upheld the Act,[80] and the Court of Appeals for the D.C. Circuit affirmed that decision,[81] the Supreme Court granted Shelby County’s writ of certiorari.[82] The Supreme Court reversed the lower court decisions and held for Shelby County, finding the preclearance provisions of the Act are unconstitutional.[83] Chief Justice Roberts criticized the Act’s coverage formula stating:

There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done.[84]

Furthermore, the Court invalidated Section 4’s coverage formula, which gave applicability to Section 5, on the basis that it violated the principle that all of the states enjoy equal sovereignty.[85] According to the Court, the equal sovereignty principle requires laws with a limited geographical scope must satisfy a higher constitutional burden than laws that apply nationwide.[86] The Court concluded that this decision “in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2,” and was not a holding on “§5 itself, only [ ] the coverage formula.”[87] The Court noted that Congress may draft another formula based on current conditions, and that formula would be a prerequisite to show that exceptional conditions still exist justifying an “extraordinary departure” from the traditional relationship between the states and the federal government.[88]

Although the Court did not expressly issue a holding on Section 5, the Shelby County decision had the practical effect of making Section 5 preclearance inapplicable.[89] In a fiery dissent, Justice Ginsburg noted that Congress had found there more Department of Justice objections between 1982-2004 (626) than there were between 1965-1982 (490).[90] R.B.G. continued in her dissent to express her disappointment with the Court’s decision, stating:

The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proved effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it, history repeats itself…In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding.[91]

As it turns out, Justice Ginsburg might be onto something with her dissenting opinion and that “history repeats itself.” Since the Shelby County decision, there has been a marked increase amongst the states of restrictive voting laws, including photo identification and proof of citizenship requirements, new restrictions on voter registration, reductions in the accessibility of absentee and early voting, and restrictions on participation by felons.[92] In the 2018 midterm elections, Georgia received national attention for their skeptical voting procedures, which had the effect of disenfranchising voters who were mainly comprised of minorities that supported the Democratic Governor candidate, African American woman Stacey Abrams.

2018 Midterm Elections and Georgia’s Gubernatorial Race

The 2018 midterms gained momentum for being one of the most consequential elections in years, as both chambers of Congress were up for grabs and the future of Donald Trump’s presidency could depend on the November 6th results.[93] Across the country, citizens appeared engaged for the 2018 midterms. As one NPR political expert expressed, “[it] looks like both bases of both parties are fully engaged in the fight. They want the fight. And it’s all because of President Trump.”[94] A usual result in midterm elections, is that members of the President’s party loses seats in both chambers of Congress.[95] However, that was not the case this year and Republicans kept power in the Senate.[96] The 36 total governor races on the ballot, along with control of state legislatures, were crucial for the redistricting battles to come after the 2020 election.[97] Overall, the Gubernatorial election results were a striking victory for Democrats, as the party gained seven seats including Wisconsin, Illinois, Michigan, Kansas, New Mexico, Nevada, and Maine.[98] However, in a tight race in Georgia, supporters of Democrat candidate Stacey Abrams contend that their defeat was due to a barrier the state imposed on absentee ballot voters.[99]

Abrams, 44, sought history in this year’s midterms, as a victory would make her the first black woman governor in the country and the first Democratic governor in Georgia in 15 years.[100] With seven years as Georgia’s House minority leader, she gained the attention of the Georgia voters and Republican party, as Abrams’s personal history and her against-the-odds rise from poverty to power has lent her “campaign sizzle and shape.”[101] Leading up to the election, “Abrams overwhelmingly leads among black voters, while she has smaller advantages among college graduates and women.”[102] Like a true politician, Abrams expressed that her fundamental philosophy is to cooperate and collaborate with the other side whenever possible.[103] Unfortunately for Abrams, it was her opponent in the race that had control over the election’s procedures, which may have not only costing her the gubernatorial seat, but the alleged temporary disenfranchisement of thousands of minority voters.[104]

Republican gubernatorial candidate and Abrams’s opponent, Brian Kemp, received an endorsement tweet from President Trump as being a key candidate for the GOP.[105] Kemp served as Georgia’s Secretary of State beginning in 2010 and resigned recently on November 6, 2018, to focus on his campaign.[106] The Secretary of State in Georgia is responsible for overseeing all election activity, including voter registration, municipal, state, county, and federal elections.[107] Since Kemp’s election as Secretary of State in 2010, Georgia has instituted an “exact match,” verification process that requires voter information to be identical to information kept on filed either at the Social Security Administration or state drivers’ license offices.[108] The Associated Press found that Kemp’s office has cancelled over 1.4 million voter registrations since 2012; and nearly 670,000 registrations were cancelled in 2017 alone.[109] Kemp was sued in 2016 by the Lawyers’ Committee for Civil Rights because 35,000 registrations were flagged as “pending” under the exact-match system and there was a huge racial disparity in terms of who was flagged.[110] Small instances such as typos, clerical errors, or missing accents or punctuation in names were all ground for election officials to challenge voter-registration applications.[111] With less than a month until this year’s midterm elections, reports indicated that 53,000 voter registrations, 70% of them from black applicants (80% from people of color), were being held by Kemp’s office for failing to clear the exact match process.[112] Another issue involved the state’s rejection of mail ballots, as MIT Election Data and Science Lab’s Election Performance Index ranked Georgia as 42nd (8th worst) in the nation for high numbers of mail ballot rejections.[113]

On October 24, Brian Kemp, as Secretary of State, was sued in federal district court for procedural due process claim that the state cannot automatically throw out absentee ballots due to either a “signature mismatch,” or for entering the incorrect date in the oath section of the ballot.[114] The Complaint mentions that 9.6% of the absentee ballots received through October 12, 2018, were rejected.[115] The rejection of mail ballots (or absentee ballots) was also discovered to fall disproportionality across Georgia: Gwinnett County alone is responsible for 40% of the rejected ballots, while Fulton County had not rejected a single ballot as of the same date.[116] The next section will analyze not only the lawsuit against Kemp, but will also analyze the coincidence of the spike in purging voters coming after the landmark 2013 Supreme Court decision in Shelby County.[117]

Five and a half years since the Shelby County decision, it appears that our nation has taken a step back in protecting minority voters. Since the Supreme Court’s decision, our nation has encountered two midterms and one presidential election; all of which, had their own instances of voting discrimination in various states, primarily in the South. With the Supreme Court moving in the direction of being a majority of conservative-state’s rights proponents, it is unclear whether or not Shelby County will ever be overturned. While there is certainly still  hope of the Supreme Court overturning the case, it may be best for Congress to step in and resolve this ongoing issue. Otherwise, I fear that there will be many more instances like Stacey Abrams’s and the suppression of minority voters in Georgia.

[1] Voting Rights Act of 1965, Pub. L. No. 89-110 (codified as amended at 42 U.S.C. §§1971, 1973 to 1973bb-1 (2000)). Section 5 is at 42 U.S.C. §1973c.

[2] Shelby County v. Holder, 568 U.S. 1006, 133 S. Ct. 594, 184 L. Ed. 2d 389 (2012).

[3] Vann R. Newkirk II, In the Georgia Governor’s Race, the Game Is Black Votes, The Atlantic, Oct. 12, 2018, www.theatlantic.com/politics/archive/2018/10/georgia-race-mired-minority-vote-suppression-charges/572854/.

[4] Jessie Allen, Article, Documentary Disenfranchisement, 86 Tul. L. Rev. 389, 401 (December, 2011) (emphasis added).

[5] Terry Gross, Republican Voter Suppression Efforts Are Targeting Minorities, Journalist Says, NPR, Oct. 23, 2018, www.npr.org/2018/10/23/659784277/republican-voter-suppression-efforts-are-targeting-minorities-journalist-says.

[6] Id.

[7] Id.

[8] U.S. Const. amend. XV, §1.

[9] U.S. Const. amend. XIV, §1.

[10] Erin Kelley, Racism & Felony Disenfranchisement: An Intertwined History, Brennan Center for Justice at New York University School of Law, May 19, 2017, www.brennancenter.org/sites/default/files/publications/Disenfranchisement_History.pdf.

[11] Merriam-Webster, www.merriam-webster.com/dictionary/disenfranchise (last visited Dec. 13, 2018).

[12] Id.

[13] Angela Behrens et al., Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850-2002, 109 Am. J. Soc. 559, 598 (2003).

[14] Carl Amritt, A Quick History Lesson on Voter Disenfranchisement, Roosevelt Institute, May 22, 2017, www.rooseveltinstitute.org/quick-history-lesson-voter-disenfranchisement/.

[15] Race, Voting Rights, and Segregation: Techniques of Direct Disenfranchisement, 1880-1965, University of Michigan, www.umich.edu/~lawrace/disenfranchise1.htm (last accessed Dec. 12, 2018).

[16] Id.

[17] See U.S. v. Cruikshank, 92 U.S. 542 (1875) (finding that the right to participate in state politics was derived from the states, so individuals could look only to the states for protection of this right).

[18] John M. Matthews, Negro Republicans in the Reconstruction of Georgia, The Georgia Historical Quarterly (Vol. 60, No. 2) 145, 153 (1975).

[19] Id. at 153-154.

[20] Race, Voting Rights, and Segregation: Techniques of Direct Disenfranchisement, 1880-1965, University of Michigan, www.umich.edu/~lawrace/disenfranchise1.htm (last accessed Dec. 12, 2018).

[21] Id.

[22] “The provisions stated that officials shall be punished for failure to count the votes of eligible electors, when the Fifteenth Amendment granted Congress only the power to punish officials for depriving electors of the right to vote on account of race” (emphasis included). Id.

[23] U.S. v. Reese, 92 U.S. 214 (1875).

[24] Through A Glass Darkly: The Supreme Court, Reconstruction Amendments, and Civil Rights, American Constitution Society, September 16, 2011, www.acslaw.org/?post_type=acsblog&p=8389.

[25] Race, Voting Rights, and Segregation: Techniques of Direct Disenfranchisement, 1880-1965, University of Michigan, www.umich.edu/~lawrace/disenfranchise1.htm (last accessed Dec. 12, 2018).

[26] Id.

[27] Id.

[28] John M. Matthews, Negro Republicans in the Reconstruction of Georgia, The Georgia Historical Quarterly (Vol. 60, No. 2) 145, 153 (1975).

[29] Id.

[30] J. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910, Yale University Publication (1974).

[31] Race, Voting Rights, and Segregation: Techniques of Direct Disenfranchisement, 1880-1965, University of Michigan, www.umich.edu/~lawrace/disenfranchise1.htm (last accessed Dec. 12, 2018).

[32] Id.

[33] See Breedlove v. Suttles, 302 U.S. 277 (1937) (holding that the poll tax was a legitimate device for raising revenue, and that the 19th Amendment regulated voting, not taxation).

[34] Race, Voting Rights, and Segregation: Techniques of Direct Disenfranchisement, 1880-1965, University of Michigan, www.umich.edu/~lawrace/disenfranchise1.htm (last accessed Dec. 12, 2018); see also Harper v. Virginia State Bd. Of Elections, 383 U.S. 663 (1966) (holding by Supreme Court that declared poll taxes unconstitutional in violation of the Equal Protection Clause).

[35] Jim Rutenberg, A Dream Undone, N.Y. Times Magazine, Jul. 29, 2015, www.nytimes.com/2015/07/29/magazine/voting-rights-act-dream-undone.html.

[36] Race, Voting Rights, and Segregation: Techniques of Direct Disenfranchisement, 1880-1965, University of Michigan, www.umich.edu/~lawrace/disenfranchise1.htm (last accessed Dec. 12, 2018); see also Nixon v. Condon, 286 U.S. 73 (1932) (holding that the Texas Democratic Party Executive Committee got its power to determine party membership from the state of Texas, and so acted as state officials).

[37] Grovey v. Townsend, 295 U.S. 45 (1935).

[38] See Ryan P. Haygood, Article, Hurricane SCOTUS: The Hubris of Striking Our Democracy’s Discrimination Checkpoint in Shelby County & the Resulting Thunderstorm Assault on Voting Rights, 10 Harv. L. & Pol’y Rev. 11, 14 (2015) (arguing that the Supreme Court’s Shelby County decision disregards not only the will of Congress, but also the will of the voters who elected those members of Congress to do the work of reauthorizing a vital federal protection).

[39] Id.

[40] Ronald J. Krotoszynski, Jr., Celebrating Selma: The Importance of Context in Public Forum Analysis, 104 Yale L.J. 1411, 1415 (1995).

[41] See Haygood, supra note 39, at 14 (stating that in Lowndes County, Alabama, which was 80% black, not a single black person was registered to vote).

[42] Id. at 15.

[43] See Id. (“The troopers and their local counterparts were present to enforce, at all costs, an order that was entered earlier that day by Governor George Wallace prohibiting the march…[But] before the marchers could get to their knees, Alabama state troopers attacked, tear-gassing, clubbing, spitting on, and trampling the marchers with their horses”).

[44] Id.

[45] See Id. (quoting President Lyndon Johnson’s speech to Congress at the Presentation of the Voting Rights Act of 1965 (Mar. 15, 1965)):

I speak tonight for the dignity of man and the destiny of democracy… At times history and fate meet at a single time in a single place to shape a turning point in man’s unending search for freedom. So it was at Lexington and Concord. So it was a century ago at Appomattox. So it was last week in Selma, Alabama.

[46] Id.

[47] Karyn L. Bass, Note and Comment, Are We Really Over the Hill Yet? The Voting Rights Act at Forty Years: Actual and Constructive Disenfranchisement in the Wake of Election 2000 and Bush v. Gore, 54 DePaul L. Rev. 111, 117 (Fall, 2004).

[48] See Id. (citing Peter G. Renstrom, Constitutional Rights Sourcebook 710 (1999) (explaining that the Voting Rights Act of 1965 is the most comprehensive piece of federal voting rights law, with substantial impact on the balance between federal and state government)).

[49] 42 U.S.C. 1973(a) (1965) (hereinafter the “Voting Rights Act”).

[50] Bass, supra note 48, at 117.

[51] Haygood, supra note 39, at 17.

[52] §5 of the Voting Rights Act, 42 U.S.C. 1973(5) (1965); Haygood, supra note 39, at 17.

[53] Haygood, supra note 39, at 17.

[54] See “Formula for Coverage Under Section 4 of the Voting Rights Act,” U.S. Dep’t of Justice, Section 4 of the Voting Rights Act, www.justice.gov/crt/section-4-voting-rights-act (last visited Dec. 10, 2018).

[55] Michael J. Pitts, Article, Section 5 of the Voting Rights Act: A Once and Future Remedy?, 81 Denv. U.L. Rev. 225, 231 (2003).

[56] Id.

[57] Haygood, supra note 39, at 18.

[58] Richard M. Valelly, The Two Reconstructions: The Struggle for Black Enfranchisement, 4 (2009).

[59] Id.

[60] Extension of the Voting Rights Act of 1965: Hearings on S. 407, S. 903, S. 1297, S. 1409, and S. 1443 Before the Subcomm. On Constitutional Rights of the S. Comm. On the Judiciary, 94th Cong. 123-24 (1975) (statement of Nicholas Katzenbach, Attorney General of the United States).

[61] See Haygood, supra note 39, at 18 (quoting Julian Zelizer, a presidential historian, who stated, “without the Voting Rights Act, many of the votes for Obama would not be votes that existed, because African-Americans were disenfranchised”).

[62] “[A]s Negro voter registration has increased under the Voting Rights Act, several jurisdictions have undertaken new, unlawful ways to diminish the Negroes’ franchise and to defeat Negro and Negro-supported candidates.” H.R. Rep. No. 91-397, at 7 (1969), as reprinted in 1970 U.S.C.C.A.N. 3277, 3283.

[63] Haygood, supra note 39, at 21.

[64] Bass, supra note 48, at 122.

[65] Id.

[66] 383 U.S. 301 (1966).

[67] “Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. The doctrine of the equality of the States…does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” Id. at 327, 337.

[68] Id. at 329-33.

[69] Pitts, supra note 56, at 238; City of Rome v. United States, 446 U.S. 156 (1980), abrogated by Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013).

[70] Pitts, supra note 56, at 238.

[71] City of Rome, 446 U.S. at 179.

[72] Bass, supra note 48, at 124.

[73] Voting Rights Act, 42 U.S.C. 1973-1975(e) (1982).

[74] Haygood, supra note 39, at 29.

[75] Id.

[76] Northwest Austin Municipal District Number One v. Holder, 557 U.S. 193, 202 (2009).

[77] Id. at 203.

[78] Haygood, supra note 39, at 29.

[79] Shelby County v. Holder, 570 U.S. 529, 541 (2013).

[80] Shelby County v. Holder, 811 F. Supp. 2d 424, 508 (2011).

[81] Shelby County v. Holder, 679 F. 3d 848, 862-863 (2012).

[82] Shelby County v. Holder, 568 U.S. 1006, 133 S. Ct. 594, 184 L. Ed. 2d 389 (2012).

[83] See Shelby County, 570 U.S. at 557 (holding “[Congress]’s failure to act leave use today with no choice but to declare §4(b) unconstitutional”).

[84] Id. at 556.

[85] Haygood, supra note 39, at 29.

[86] See Shelby County, at 549 (“[A] statute’s ‘current burdens’ must be justified by ‘current needs,’ and any ‘disparate geographic coverage’ must be ‘sufficiently related to the problem that it targets.’”

[87] Id. at 557.

[88] Id.

[89] Haygood, supra note 39, at 31.

[90] Rutenberg, supra note 36.

[91] Shelby County, at 592-93 (Ginsburg, dissenting).

[92] Ian Vandewalker and Keith Gunna Bentele, Article, Vulnerability in Numbers: Racial Composition of the Electorate, Voter Suppression, and the Voting Rights Act, 18 Harv. Latino L. Rev. 99, 101 (Spring, 2015).

[93] “Midterm Elections Preview,” The Washington Post, Oct. 25, 2018, www.washingtonpost.com/post-live-2018-midterm-elections-preview/?utm_term=.3f4fda705411.

[94] Interview Transcript of Domenico Montanaro, Midterm Elections Preview, NPR.org, Sept. 16, 2018, www.npr.org/2018/09/16/648452199/midterm-elections-preview.

[95] “A Quick 2018 Midterm Election Preview,” NCPA.org, www.ncpanet.org/advocacy/the-engines/ncpa-pac/2018-midterm-election-preview (last visited Dec. 14, 2018).

[96] See “2018 Midterm Election Results,” N.Y. Times, Nov. 27, 2018, www.nytimes.com/interactive/2018/us/elections/calendar-primary-results.html (“Democrats gained control of the House while Republicans kept power in the Senate”).

[97] “Governor Election Results 2018,” N.Y. Times, Dec. 14, 2018, www.nytimes.com/interactive/2018/11/06/us/elections/results-governor-elections.html.

[98] Id.

[99] P.R. Lockhart, Georgia, 2018’s Most Prominent Voting Rights Battleground, Explained, Vox, Oct. 26, 2018, www.vox.com/policy-and-politics/2018/10/26/18024468/georgia-voter-suppression-stacey-abrams-brian-kemp-voting-rights.

[100] Jacob Pramuk, Georgia Governor’s Race Is Neck And Neck As Democrat Abrams Tries to Make History: NBC News/Marist Poll, Cnbc.com, Oct. 24, 2018, www.cnbc.com/2018/10/24/georgia-governor-race-between-brian-kemp-and-stacey-abrams-is-dead-heat.html.

[101] Sarah Lyall & Richard Fausset, Stacey Abrams, a Daughter of the South, Asks Georgia to Change, N.Y. Times, Oct. 26, 2018, www.nytimes.com/2018/10/26/us/politics/stacey-abrams-georgia-governor.html.

[102] Pramuk, supra note 101.

[103] See Lyall, supra note 102 (quoting Stacey Abrams’ statement to Governing Magazine when she was named in 2014 as public official of the year, “My fundamental philosophy, is that my first job is to cooperate and collaborate with the other side whenever I can”).

[104] See Luke Darby, Voter Disenfranchisement Is Alive and Well In Georgia During the Midterm Elections, GQ News, Nov. 6, 2018, www.gq.com/story/voter-disenfranchisement-alive-georgia (“It’s been clear throughout the Georgia governor’s race that Republican nominee Brian Kemp has a distinct and disturbing edge over his opponent Stacey Abrams: Kemp is the man responsible for running the election”).

[105] “Georgia 2018: Meet Brian Kemp, Republican Nominee for Governor,” AJC.com, Oct. 17, 2018, www.ajc.com/news/state–regional-govt–politics/georgia-2018-meet-the-republicans-running-for-governor/fmok90FKC4vqBwWhaifpJN/.

[106] Beth Ward, Meet the Candidates in Georgia’s 2018 Governor Race, WABE.org, Mar. 28, 2018, www.wabe.org/meet-georgias-2018-governor-candidates/ (emphasis added).

[107] Georgia Secretary of State, Elections, www.sos.ga.gov/index.php/elections (last visited Dec. 12, 2018).

[108] Vann R. Newkirk II, In the Georgia Governor’s Race, the Game Is Black Votes, The Atlantic, Oct. 12, 2018, www.theatlantic.com/politics/archive/2018/10/georgia-race-mired-minority-vote-suppression-charges/572854/.

[109] Ben Nadler, Voting Rights Become a Flashpoint in Georgia Governor’s Race, Associated Press, Oct. 9, 2018, www.apnews.com/fb011f39af3b40518b572c8cce6e906c.

[110] Terry Gross, Republican Voter Suppression Efforts Are Targeting Minorities, Journalist Says, NPR, Oct. 23, 2018, www.npr.org/2018/10/23/659784277/republican-voter-suppression-efforts-are-targeting-minorities-journalist-says.

[111] Newkirk, supra note 109.

[112] Nadler, supra note 110.

[113] Complaint at 4, Rhonda J. Martin v. Brian Kemp, No. 1:18-mi-3383 (N.D. Ga., Oct. 15, 2018).

[114] Id. at 4-6.

[115] Martin v. Kemp: At A Glance, Campaign Legal Center, Oct. 23, 2018.

[116] Id.

[117] Newkirk, supra note 109.