Shelby County v. Holder gutts the Voting Rights Act

The US Supreme Court ruled 5–4 that Section 4(b) of the Voting Rights Act — the coverage formula determining which jurisdictions required federal preclearance under Section 5 — was unconstitutional because it was based on data from the 1960s and 1970s.

The decision did not formally repeal Section 5, but with no coverage formula, preclearance no longer applied to any jurisdiction. Within hours of the decision, several states announced new voter-ID and list-maintenance laws that had been blocked by preclearance. Brennan Center analysis has tracked the resulting wave of voting-law changes since.

Congress has not enacted a new coverage formula.

The specific holding in Shelby County v. Holder was narrow but operationally consequential. Section 4(b) of the Voting Rights Act, as last amended in 1975, set out the coverage formula that determined which state and local jurisdictions were subject to Section 5 preclearance. The formula used voter registration and turnout data from the 1964, 1968, and 1972 presidential elections plus the use of a discriminatory test or device. The 2006 reauthorization of the Act extended the preclearance regime for twenty-five years but did not update the coverage formula. The Court's 5-4 decision held that the formula, based on forty-year-old data, no longer reflected current conditions and could not constitutionally support the extraordinary intrusion of preclearance on the affected states' sovereignty over their own election administration.

The Court did not invalidate Section 5 itself. The opinion explicitly preserved the preclearance regime as constitutionally permissible in principle; what was invalidated was the formula that determined which jurisdictions were covered. The operational effect, however, was to suspend preclearance entirely because no jurisdictions are covered without a constitutionally adequate formula. Congress retained the authority to enact a new formula, and the John Lewis Voting Rights Advancement Act, introduced in successive Congresses since 2019, would do so. As of the most recent platform retrieval date, no successor formula has been enacted.

Justice Ginsburg's dissent argued that the relevant constitutional question was not whether the formula was based on current data but whether the conduct the formula was designed to detect continued to occur. The dissent's reading of the Congressional record on the 2006 reauthorization argued that Congress had compiled substantial evidence of continuing discriminatory practices in the covered jurisdictions. The dissent's now-canonical line — 'throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet' — framed the decision as a structural error rather than as a formal disagreement about constitutional reasoning. The dissent has been widely cited in subsequent voting-rights commentary.

The immediate post-Shelby legislative response in the formerly covered jurisdictions was substantial and documented. Within twenty-four hours of the decision, several state attorneys general announced that voter-identification statutes that had been blocked or modified under preclearance would now go into effect. North Carolina enacted a multi-provision voting law in 2013 that combined voter-identification requirements, cuts to early voting, the elimination of same-day registration, and the elimination of out-of-precinct provisional ballots. The law was struck down in NC NAACP v. McCrory (4th Cir. 2016) as having been enacted with discriminatory intent, on a record documenting that the legislature had requested racial data on voting patterns by method before designing the law. Texas, Mississippi, Georgia, Alabama, and several other states moved to implement voter-ID statutes, polling-place consolidations, and voter-roll list-maintenance practices that had been previously blocked or modified under preclearance.

The empirical effect on voter turnout in the formerly covered jurisdictions has been the subject of extensive subsequent study. The Brennan Center for Justice's ongoing tracking of post-Shelby polling-place closures documented the closure of approximately 1,600 polling places in formerly covered jurisdictions between 2013 and 2018. The literature on the turnout effects of voter-ID statutes is mixed but trends toward small-to-moderate reductions in turnout among Black, Latino, young, and lower-income voters. The systemic effect that is less contested is the change in litigation posture: voting-rights challenges that would have been resolved before implementation under preclearance now have to be litigated after the fact under Section 2 of the Voting Rights Act or the Fourteenth and Fifteenth Amendments, with the burden of proof on the plaintiffs.

Section 2 of the Act — the nationwide vote-dilution and discriminatory-results provision — remains the principal post-Shelby vehicle for federal voting-rights litigation. Allen v. Milligan (2023) reaffirmed Section 2's effects-test framework as applied to congressional redistricting, holding that Alabama's congressional map likely violated Section 2 by diluting Black voting strength. The Court's recent Section 2 jurisprudence has been less unified than its Section 5 jurisprudence; commentators read Milligan as a partial check on the post-Shelby trajectory. The Voting Rights Act's operational future continues to be determined principally by the question of whether Congress will enact a new Section 4(b) coverage formula and, if so, what conduct that formula will select for preclearance review.

The post-Shelby legislative response at the federal level has been the principal civil-rights legislative effort of the past decade. The John Lewis Voting Rights Advancement Act, introduced in successive Congresses since 2019, would establish a new Section 4(b) coverage formula keyed to recent voting-rights violations. The proposal has passed the House of Representatives in some Congresses and has not achieved Senate passage in any Congress to date. The Freedom to Vote Act, the parallel proposal addressing the broader voting-rights framework, has similarly been introduced repeatedly without enactment. The combined effect of the proposed reforms, if enacted, would substantially restore the pre-Shelby operational scope of the federal voting-rights framework.

The state-level voting-rights statutes that have emerged in the post-Shelby period to provide additional protections include the John R. Lewis Voting Rights Act of California (2024), the New York Voting Rights Act (2022), the Connecticut Voting Rights Act (2023), the Virginia Voting Rights Act (2021), and the Washington Voting Rights Act (2018, expanded 2024). The state-level frameworks establish state-law analogues to the federal Section 2 and Section 5 protections and provide additional substantive and procedural protections within the affected jurisdictions. The platform's campaigns pages track the current status of the federal-level proposals and the state-level enactments.