Minority voting power dropped after court weakened Voting Rights Act, study finds

A car with a sign reading "Protect Our Vote!" waits in line at a voting rights demonstration.
A car waits in line at the John Lewis Voter Advancement Day Votorcade at the Arizona State Capitol in Phoenix, AZ, on May 8, 2021. (Photo by Alexandra Buxbaum/Sipa USA)(Sipa via AP Images)

Since the Supreme Court struck down a key provision of the Voting Rights Act in 2013, minority voter underrepresentation has intensified—especially in places where Black, Asian, and Latino voters are on the brink of being electoral majorities, according to a new Berkeley Haas study.

The study found sharp drops in minority voter registration and representation in cities that had new freedom to change their voting rules following the Shelby County v. Holder decision, which effectively lifted “preclearance” rules requiring federal approval for election changes in states and counties with a history of voter discrimination.

This suggests organized and concerted efforts to limit minorities’ voting power, says co-author Francesco Trebbi, professor of business and public policy at the Haas School of Business.

“Something is deeply skewed in terms of the electoral playing field here, and it’s surgical,” Trebbi says. “If you just look overall, everything may look okay. But if you dig deeper and look at the areas where minority voting share is on the brink of being pivotal, you see that something bad is happening.”

“Something is deeply skewed in terms of the electoral playing field here, and it’s surgical.” —Francesco Trebbi

Along with co-author Federico Ricca, a PhD candidate at the University of British Columbia, Trebbi used U.S. Census data to analyze patterns of minority representation and voter registration in more than 7,600 cities, paying particular attention to how these patterns shifted in areas that had been covered by preclearance rules. They found compelling evidence that voter disenfranchisement is not a relic of American history, but is now on the rise.

Removing federal gatekeepers

The Voting Rights Act of 1965 deemed some states and counties in need of a federal gatekeeper of sorts: Before these jurisdictions could change any law related to voting, they had to obtain federal permission.

To determine which places would require this oversight, the Voting Rights Act implemented a formula: Any jurisdiction that required a test or other prerequisite—such as a poll tax or document requirements—in order to vote, and in which less than half the eligible voters were registered or turned out in the 1964 election, would be covered by the preclearance rule. The Voting Rights Act’s coverage was later updated to include jurisdictions that met the same criteria in 1968 and 1972. The rules covered nine states, mostly in the Southeast plus Alaska and Arizona, as well as specific counties and townships in six other states, including California, New York, South Dakota, and Michigan.

The Shelby County v. Holder ruling’s specific move was to strike down this preclearance formula as unconstitutional. Though it upheld the preclearance requirement itself, the protections are, in effect, removed until Congress passes legislation describing a new formula.

“The removal of the Voting Rights Act protection could be particularly damaging going forward in a period of increasing diversity in the U.S., with the growing number of minorities deserving a fair shot at representation” —Federico Ricca

In his majority opinion, Justice John Roberts hinged his argument on how much voting access has improved in the nearly half century since the Voting Rights Act was passed, arguing that the  coverage criteria were outdated.

“Voter registration and turnout numbers in the covered States have risen dramatically in the years since,” Justice Roberts wrote. “Racial disparity in those numbers was compelling evidence justifying” the Voting Rights Act’s preclearance rules. “There is no longer such a disparity.”

Analyzing new data

The study’s findings undermine Justice Roberts’ words. Since the ruling, Trebbi says, he’s been eager to investigate its impact on minority voting. He has previously published research on strategic minority disenfranchisement in the U.S., and he needed to wait for Census data to accumulate before he could dive into his questions around Shelby.

Racial and ethnic minorities are underrepresented at all levels of government. For example, they account for 40% of the U.S. population but are still only 23% of Congress. In 2018, Latinos made up 18.1% of the U.S. population, but only 1.2% of all national and local elected officials.

Trebbi and Ricca chose to focus on local politics because the elections are nonpartisan, yet often sharply divided by race and ethnicity. City councils are important because they often serve as a launching point for careers in higher office, and they make decisions on policies and services that directly impact the average voter. So the researchers’ first step was to analyze the relationship between shares of minority voters and shares of minority city council members.

Focusing on cities also gave them a large sample to work with. They used data on municipalities and their council composition, forms of government, and electoral rules from surveys managed by the International City/County Management Association (ICMA), complemented by sociodemographic data from the U.S. Census. Their sample covered 7,687 cities between 1981 and 2020.

Pivotal groups = more underrepresentation

What the researchers found when they looked into minority representation on city councils echoed throughout their other findings. As Trebbi puts it: “Every minority racial and ethnic group is underrepresented, but they are especially underrepresented when they start to become electorally important.”

Specifically, city council underrepresentation is the highest when minorities account for 55% to 60% of the total voting age population.

“Already this tells you that there is something going on here that is not just explained by minorities voting less or participating less in elections,” Trebbi says. If that were the case, underrepresentation would be roughly the same across cities with different percentages of minority populations—not so predictably most-pronounced in cities with pivotal shares of these voters.

The researchers also examined patterns in voter registration and found that, again, under-registration rates were highest at a similar sweet spot—when levels of minority population shares were between 45% and 50%.

Evidence of strategic rule changes

Next, Trebbi and Ricca sought to determine whether electoral rules tended to change when minority voters crossed a particular population threshold. In Trebbi’s previous research, he showed that “at-large” systems—where all voters vote for city-wide representatives—dilute minority votes more than systems where smaller districts elect their own council members, because minorities tend to be concentrated in certain neighborhoods. Consistent with this finding, the researchers found that at-large systems were most likely to be used in places where minorities represented about 25% of a population—not a large enough share to threaten a white majority in a citywide election. But as a city’s minority population grew, it was less and less likely to employ an at-large election system.

Shifts between at-large and district representative systems were the type of change that had required federal preclearance under the Voting Rights Act’s Section 4(b). In the third part of their research, Trebbi and Ricca analyzed data on the Act’s coverage collected directly from the U.S. Department of Justice.

“For some, the first two sets of results would be sufficient to identify a strategic component to this, but we also have the Shelby results that double down on intent,” Trebbi says. “You see that the moment the coverage restriction was lifted, minority representation declined.”

Specifically, minority voter underrepresentation increased by up to 6.3 percentage points in municipalities previously covered by the preclearance rule. In general, representation had been lower in non-covered jurisdictions before the ruling, but after the ruling, covered and non-covered jurisdictions’ representation numbers have converged.

“Throwing away your umbrella”

In her dissenting opinion in Shelby County v. Holder, Justice Ruth Bader Ginsburg wrote, “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.”

The researchers drew a similar conclusion, writing that the Voting Rights Act’s preclearance rule was an “an imperfect, but effective, tool in limiting the representation gap.” In January, the U.S. House of Representatives passed the John R. Lewis Voting Rights Advancement Act, which would restore the preclearance rule. It now awaits a vote in the Senate.

“The removal of the Voting Rights Act protection could be particularly damaging going forward in a period of increasing diversity in the U.S., with the growing number of minorities deserving a fair shot at representation,” Ricca said.