In what region of the country was preclearance previously required most prominent?

In 2013, the U.S. Supreme Court struck down a provision of the Voting Rights Act (VRA) that outlined a formula based on which certain state and local governments were required to get federal pre-approval, or preclearance, for changes to their election and voting procedures. The formula—in Section 4(b) of the act—was intended to identify states with histories of racially discriminatory voting practices. The preclearance provision—Section 5—required states meeting criteria outlined in the formula to demonstrate that any new procedures were not intended to and would not have the effect of hindering the ability to vote based on race or color. The Supreme Court struck down Section 4(b) of the act, leaving Section 5 intact. As of 2019, this meant that the preclearance provision was inoperable but that it could become operable if a new formula were approved by Congress.

Inhaltsverzeichnis Show

Arguments at a glance
Support arguments in detail
Opposition arguments in detail
Other noteworthy cases
Further reading

Whether Section 5 of the VRA should be restored through a new coverage formula is a subject of debate.

Supporters of restoring preclearance argue that there is evidence of continued need for it and that other provisions of the VRA are insufficient for addressing discrimination.

Opponents of restoring preclearance argue that there is no evidence of need for it to justify the extent of federal power it grants and that other provisions of the VRA are sufficient for addressing discrimination.

On this page, you will find:

Background

Congress adopted the Voting Rights Act in 1965 to end discriminatory practices by state and local governments that limited voting rights based on race or color.[1]

Subsection 4(b) of the act specified that any state or political subdivision was subject to the preclearance requirement in Section 5 if: "(1) the Attorney General determines that it maintained on November 1, 1964, any test or device," where "test or device" refers to tests of literacy, moral character, educational level, or other prerequisite to vote or register to vote, and "(2) the Director of the Census determines that less that 50 per centum of the persons of voting age were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964."[1]

Section 4(b) was amended in 1970 and 1975 to reference more current presidential election years (November 1968 and 1972, respectively). As part of the 1975 amendment, the definition of "test or device" was amended to include disseminating election materials and ballots in English only in jurisdictions where at least 5 percent of the voting-age population speaks another language.[2]

Section 5 of the act requires covered states to seek preclearance for any changes to voting and election procedures from the United States Attorney General or a declaratory judgment from the United States District Court for the District of Columbia "that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." Until federal approval is granted, "no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure."[1]

At the time of the 2013 Shelby County ruling, nine states were subject to the preclearance requirement in Section 5, along with 56 counties and two townships in other states.[3]

The coverage formula and preclearance requirement were originally set to expire after five years. However, Section 5 was reviewed and renewed when the VRA came before Congress in 1970, 1975, 1982, and 2006.[4]

Noteworthy case: Shelby County v. Holder (2013)

Arguments at a glance

This section includes quotes briefly summarizing some of the most prevalent arguments for and against restoring Section 5 preclearance.

Arguments for and against restoring Section 5 preclearance
Support	Opposition
"The [VRA] works to dislodge and deter the construction of barriers by state and local jurisdictions that block or abridge the right to vote of minority citizens. Especially following the 2013 Supreme Court decision in Shelby County v. Holder precluding operation of certain parts of the Voting Rights Act, the narrowness of statutory mechanisms to halt discriminatory election procedures before they are instituted has resulted in elections with discriminatory voting measures in place. After an election takes place with discriminatory voting measures, it is often impossible adequately to remedy the violation even if the election procedures are subsequently overturned as discriminatory." -U.S. Commission on Civil Rights (2018)[9]	"Section 5 was an unprecedented, extraordinary intrusion into state sovereignty since it required covered states to get the approval of the federal government for voting changes made by state and local officials. … The Supreme Court in Shelby County found that the general conditions in covered states today do not justify their continued exception from general constitutional principles and strictures. However, a court can still appoint federal examiners and place a particular jurisdiction into the equivalent of Section 5 preclearance if it finds sufficient evidence of current, repeated discrimination and a recalcitrant defendant under Section 3’s requirements." -Hans von Spakovsky of The Heritage Foundation (2018)[10]

Support arguments in detail

Two general arguments in favor of restoring Section 5 preclearance are that there is evidence of need for it and that other provisions of the VRA are insufficient for addressing discrimination. This section details those arguments from a variety of sources arranged by topic.

Claim: There is evidence of continued need for Section 5 preclearance

The U.S. Commission on Civil Rights argued in its 2018 report to President Donald Trump (R) titled, "An Assessment of Minority Voting Rights Access in the United States," that racial turnout statistics may provide evidence of continued voter discrimination. In its report, the commission recommended amending the VRA coverage formula to "include current evidence of voting discrimination as well as evidence of historical and persisting patterns of discrimination."

The U.S. Commission on Civil Rights "is an independent, bipartisan agency established by Congress in 1957," its report said.

“

In the Shelby County decision, in looking at the preclearance formula, the Supreme Court stated that disparities in turnout between African-American and white voters have been nearly eliminated. As discussed below, the Supreme Court’s decision did not compare the turnout rates of other races. ...

There are only 13 states where overall minority registration rates (including all voters of color) are higher than white registration rates. These are: Georgia, Illinois, Indiana, Kentucky, Mississippi, Missouri, New York, North Carolina, Ohio, South Carolina, Tennessee, Texas, and Wisconsin. Section 5 previously covered six of these 13 states. ...

Asian-American/Pacific Islander, Latino, and Native American voters are experiencing wide turnout gaps. On a national level, the currently low turnout rates among these minority citizen groups are as low as the less than 50 percent turnout of eligible black voters that formed the basis for the initial preclearance formula in Section 5 at the time of the 1964 Presidential Election. ...

While turnout is not the only indicator of ongoing discrimination in voting, considering the changing demographics of the nation, ongoing gaps in minority turnout may be one of various factors or indicators to evaluate current conditions.[11]

”

Vox staff writer P.R. Lockhart wrote an article quoting leaders of organizations arguing that voting laws that disproportionately affected voters of color had been passed in places formerly covered by the preclearance formula since the Shelby decision and that this is evidence of a need to restore preclearance.

“

[John Yang, the president and executive director of Asian Americans Advancing Justice,] notes that laws and election management practices — some of which limit the availability of ballots in different languages, have strong photo ID restrictions, and scrutinize the ballots of voters who are naturalized citizens — have all negatively affected Asian American voters. Organizations working with other marginalized communities, including Latino voters, black voters, and Native American voters, have also noted that other racial groups are disproportionately affected by restrictions passed in the six years since Shelby.

The passing of these laws has been made possible by the defanging of preclearance, which allowed the federal government to weigh in on these restrictions before they could take effect, creating some standardization in what was not allowed in state election systems. After Shelby, though, states were allowed to enact measures that would likely have been reviewed by Section 5 in earlier years.

Civil rights groups say this is especially the case in places like Texas, where a strict voter ID requirement first passed in 2011 (the law did not take effect until 2013 when the state was no longer under preclearance) mandated that voters show a government-issued photo ID, driver’s license, or passport before voting. That requirement was later altered by the state legislature in 2017 after a court order, but the decision was not supported by the federal government, with the Justice Department reversing its earlier opposition to the law shortly after President Donald Trump entered office. ...

[Thomas Saenz, president and general counsel for the Mexican American Legal Defense and Educational Fund (MALDEF), says,] “The right to vote is essential to every other right given to communities of color and other populations.” ... Saenz adds that while the Shelby ruling has clearly had an impact on voters of color in multiple states, it won’t be until the next round of redistricting after the 2020 Census — the first where former Section 5 states can draw maps without getting them pre-approved — where the “full scope of the loss caused by Shelby” will be seen.[11]

”

—P.R. Lockhart, Vox staff writer (2019)[12]

Claim: Other sections of the VRA are insufficient for addressing discrimination

The U.S. Commission on Civil Rights argued in its 2018 report that Section 3 of the VRA—which also includes a federal preclearance provision—is not an effective substitute for Section 5.

“

"[I]n the post-Shelby County era, Section 3 remedies have been granted through federal court opinions in only two known cases. ...

[A]s this section documents, to date, judicial preclearance was not ordered in what may be the most harmful instance of intentional discrimination in the post-Shelby County era, in which minority voters were targeted "with almost surgical precision." Future litigation may show that judicial preclearance will be more available in the post-Shelby County era, but as shown below, in North Carolina and Texas, this alternative method of preclearance has been elusive. …

[I]n its final ruling on the merits in 2016, the Fourth Circuit held that in enacting HB 589, the North Carolina state legislature and governor had violated the VRA’s prohibition against intentional discrimination under Section 2, as well as the 14th Amendment to the United States Constitution. ...

Plaintiffs and the DOJ had also requested judicial preclearance under Section 3 of the VRA, but the court of appeals denied this request. Despite the findings of discriminatory purpose and consequent violation of the 14th Amendment, the Fourth Circuit “decline[d] to impose any of the discretionary additional relief available under § 3 of the Voting Rights Act, including imposing poll observers during elections and subjecting North Carolina to ongoing preclearance requirements.” Citing federal case law, it found that “[s]uch remedies ‘[are] rarely used’ and are not necessary here in light of our injunction [of HB 589].” This may be because current case law shows that judicial preclearance may only be granted if it is imperative—and regarding North Carolina, the Fourth Circuit reasoned that its permanent injunction striking down HB 589 made such remedies “not necessary.”[11]

”

—U.S. Commission on Civil Rights (2018)[9]

The Brennan Center for Justice argued that Section 2, which allows legal challenges against alleged voting discrimination, is not a substitute for Section 5's preclearance provision because it does not prevent discrimination from happening in the first place.

The Brennan Center is a progressive law and policy institute that describes its mission as "to reform, revitalize – and when necessary, defend – our country's systems of democracy and justice."[13]

“

Just hours after the Supreme Court issued its ruling, Texas announced that it would implement the country’s strictest voter ID law, which had previously been denied preclearance and hadn’t been put into effect. (This notorious law allowed people to use a concealed carry gun permit as voter ID but barred the use of a University of Texas ID.) A federal court later blocked the law as discriminatory — but not before it marred multiple elections.

Other states responded similarly to the Shelby County ruling with laws restricting voting. Federal courts have repeatedly found that these new laws made voting harder for minorities — some purposefully so. One federal appeals court ruled that a North Carolina law — a broad set of voting restrictions unveiled shortly after Shelby County — “target[ed] African Americans with almost surgical precision.” These lawsuits were brought under a remaining provision of the Voting Rights Act, Section 2, which allows challenges to voting discrimination. But lawsuits are no substitute for preclearance, which effectively prevented discriminatory voting changes from taking effect in the first place. Section 2 lawsuits are lengthy, expensive, and often don’t yield results until after an election (or several) is over. And they are rarely used for the most pervasive consequence of the weakening of the law — local decisions that make it harder for people to vote. Since Shelby County, officials have closed hundreds of polling places in counties previously covered by the VRA.[11]

”

—The Brennan Center (2018)[14]

Opposition arguments in detail

Two general arguments against restoring Section 5 preclearance are that there is no evidence of a need for it to justify the extent of federal power the section grants and that other provisions of the VRA are sufficient for addressing discrimination. This section details those arguments from a variety of sources arranged by topic.

Claim: No evidence of need to justify the extent of federal powers granted by Section 5

Hans von Spakovsky of The Heritage Foundation argued that there was no evidence of continued need for Section 5 based on registration and turnout rates for black voters.

The Heritage Foundation says its mission is "to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense."[15]

“

As the Supreme Court said, Section 5 “employed extraordinary measures to address an extraordinary problem.” ...

Section 5 was needed in 1965. But as the Court recognized, time has not stood still and “[n]early 50 years later, things have changed dramatically.” The systematic, widespread discrimination against black voters has long since disappeared. As the Court recognized in the Northwest Austin case in 2009: “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”

As an example, in Georgia and Mississippi, which had such high disenfranchisement rates in 1964, the percentage of black voters registered actually exceeded the white registration percentage in the 2004 election, just two years before Congress was considering the renewal of Section 5. Black registration exceeded white registration by 0.7 percentage points in Georgia and by 3.8 percentages points in Mississippi. The Census Bureau’s May 2013 report on the 2012 election showed that blacks voted at a higher rate than whites nationally (66.2 percent vs. 64.1 percent).

That same report shows that black voting rates exceeded that of whites in Virginia, South Carolina, Georgia, Alabama, and Mississippi, which were covered in whole by Section 5, and in North Carolina, and Florida, portions of which were covered by Section 5. Louisiana and Texas, which were also covered by Section 5, showed no statistically significant disparity between black and white turnout. Minority registration and turnout are consistently higher in the formerly covered jurisdictions than in the rest of the nation.[11]

”

—Hans von Spakovsky of The Heritage Foundation (2018)[10]

Following the Shelby County Supreme Court decision, William S. Consovoy and Thomas R. McCarthy—attorneys who represented Shelby County—argued that modern situations did not justify the extent of federal power granted under Section 5.

“

No one should doubt that preclearance helped transform the South from a bastion of voting discrimination into a place where racial equality is an institutional priority.

At the same time, that undeniable success came at a high cost. Preclearance deviates from our constitutional order in fundamental ways. Under our system of government, states are sovereign in the field of state and local elections. Yet preclearance deprived them of the right to self-government. It is therefore difficult to overstate just how novel preclearance is. ...

In 1966, the Supreme Court upheld Section 5, but only because Congress had shown that the emergency required special measures. The Court made clear that preclearance would otherwise have been inappropriate and that two additional features ensured that this novel law would not permanently upset the division of power between the federal and state governments. First, the formula that Congress used to select those jurisdictions that would be subject to this harsh remedy made sense. ... Second, Section 5 was temporary, a measure that would sunset after five years. ...

In a 5–4 decision, the Supreme Court ruled that Section 4(b)’s outdated formula was no longer constitutional. ...

It’s now Congress’s move. If Congress and the president can find their way to a new coverage formula that can meet the constitutional standard, the battle over Section 5’s constitutionality will be joined for a third time since 2006. But perhaps those disappointed with the Supreme Court’s decision and interested in pursuing that course should think twice before reinstituting the sweeping preclearance regime reenacted in 2006. ... Congress would be wise to reconsider whether an emergency response to rampant voting discrimination remains justifiable given the transformation our nation has seen since 1965. ...

Instead of judiciously exercising its statutory authority in order to avoid a constitutional confrontation [after the 2009 Northwest Austin Municipal Util. Dist. No. One v. Holder case], DOJ [the Justice Department] aggressively enforced the law in ways that only served to highlight the problems with the coverage formula. For example, DOJ refused to preclear the Texas and South Carolina voter identification laws even though the Supreme Court previously upheld Indiana’s similar law. Likewise, Florida—which needed to obtain preclearance of its laws because 5 of its 62 counties are covered jurisdictions—was forced into preclearance litigation to prove that reducing early voting from 14 days to 8 days is not discriminatory when states such as Connecticut, Pennsylvania, and Rhode Island, have no early voting at all.

Such questionable preclearance denials raised concerns about whether Section 5’s mission had strayed from ensuring that minority voters were not disenfranchised to providing DOJ with a convenient and efficient means of imposing its preferred electoral system on covered jurisdictions.[11]

”

—William S. Consovoy and Thomas R. McCarthy, Shelby County's attorneys (2013)[16]

Claim: Other provisions of the VRA are sufficient for addressing discrimination

Hans von Spakovsky of The Heritage Foundation argued that Section 2 was adequately addressing the issue of discrimination.

“

There is...no evidence that, in jurisdictions where a Section 2 violation has been found by a court, that those political bodies have evaded the remedies imposed to implement more discriminatory practices.

That is a key point because the fundamental reason that Section 5 was implemented in 1965 in addition to the protections of Section 2 was to stop efforts by local jurisdictions to evade court remedies. As the Supreme Court said in Katzenbach when it upheld Section 5, the preclearance requirement was tailored to stop such "obstructionist tactics." The Supreme Court noted in Shelby County its earlier observation in the Northwest Austin case that "blatantly discriminatory evasion of federal decrees are rare."[11]

”

—Hans von Spakovsky of The Heritage Foundation (2018)[10]

Roger Clegg, president of the Council for Equal Opportunity, argued that Sections 2 and 3 of the VRA are sufficient for addressing discrimination.

The Council for Equal Opportunity describes itself as "the nation’s only conservative think tank devoted to issues of race and ethnicity" and says it works "to promote a colorblind society, one within which race and skin color are no longer an issue."[17]

“

At that time [in 1965], whole swaths of the country were systematically and blatantly denying people the right to vote because of race. But now there are no large sections of the country like 1965 Mississippi. I very much doubt, in fact, that there is any single state or local jurisdiction that is like 1965 Mississippi.

But what if there were? Well, then you have Section 3 of the act, which allows a judge to put a jurisdiction that denies or restricts voting rights into this kind of “preclearance” receivership. It’s been done. For other instances of racial discrimination, you have Section 2 of the act, which applies to the whole country. Remember that the only provision the Court struck down was the coverage formula for Section 5; the rest of the act is untouched.

Indeed, these other provisions are now being used, aggressively, by the Obama administration and liberal civil-rights groups, and there is no evidence that they need more weapons in their arsenals. If they can prove their cases in court, they will win—the way it works with every other civil-rights law—but with Section 5 they have gotten used to winning without having to prove anything, and that’s the only reason for the efforts to bring back Section 5.[11]

”

—Roger Clegg, president of the Council for Equal Opportunity (2015)[18]

Other noteworthy cases

Northwest Austin Municipal Util. Dist. No. One v. Holder (2009)

See also: Northwest Austin Municipal v. Holder

Northwest Austin Municipal v. Holder established that all political subdivisions, such as utility districts, are eligible to be released from the preclearance requirements of the Voting Rights Act of 1965.[19]

The Northwest Austin Municipal Utility District No. 1, as a part of Texas, was subject to the preclearance requirements of Section 5 of the Voting Rights Act. The district filed suit in the United States District Court for the District of Columbia, arguing it had no history of racial discrimination and that Section 4(a) of the Voting Rights Act allowed the district to seek to be released from preclearance. The district further argued that Section 5 was unconstitutional if it did not declare them eligible to seek release from preclearance. The district court rejected the claims, stating that Section 4(a) did not apply to entities that did not register voters and that Section 5 was constitutional. The district appealed to the Supreme Court, which agreed to hear the case.[19]

On June 22, 2009, the Supreme Court found in favor of the district in a unanimous decision that the district could seek to be released from preclearance per Section 4(a). The court decided not to address the constitutionality of Section 5 in an 8-1 decision.[19][20]

South Carolina v. Katzenbach (1966)

Katzenbach was the first Supreme Court case on the constitutionality of the VRA's preclearance provisions and was decided a year following the act's passage. The Supreme Court upheld the preclearance provisions of the law, among others.[21]

South Carolina filed suit challenging several provisions of the VRA, including Sections 4 and 5, claiming that they violated the equal treatment of states principle and Article III (which enumerates judicial powers), respectively. South Carolina was subject to preclearance under the formula set out in Section 4(b).[21]

In upholding the provisions of the VRA, the Supreme Court's majority opinion read, “Congress had learned that substantial voting discrimination presently occurs in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future. Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.”[21]