This week, we celebrated the 47th anniversary of the signing of the Voting Rights Act, often called the “crown jewel” of the civil rights movement. Today, challenging the constitutionality of “preclearance” under the VRA seems to be all the rage, so I thought it might be useful for people to know a little bit more about what it is and why we have it.
In 1965, when Congress passed the Voting Rights Act, many states and counties had a particularly sorry history of racial discrimination in voting. Some of them were predictable (Alabama, Louisiana, and South Carolina, for example), some unexpected (such as parts of Idaho and Hawaii). The “coverage formula”—the means by which it was determined which states or smaller jurisdictions were to be covered by the preclearance requirement of the Voting Rights Act—was designed as an objective measurement of the jurisdiction’s past voting practices, including discriminatory qualifications and rates of registration and voting.
Under Section 5 of the Voting Rights Act, preclearance jurisdictions are required to seek approval of any change in their voting procedures, either by submitting the change to the Department of Justice or by filing suit in the federal court in Washington, DC, or both. The inquiry is whether the voting change has the purpose or will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. Until preclearance is granted, no voting change may go into effect.
As recently as 2006, Congress re-embraced the Voting Rights Act (including the preclearance requirement) by an overwhelming bipartisan vote. Some modifications to the coverage formula have been made over the years, and, as a result, some preclearance jurisdictions have been added (the entire state of Texas, for example, as well as certain counties in New York, New Hampshire, and California).
In 2009, however, the Supreme Court of the United States liberalized the ability of jurisdictions to “bail out” of the requirement while declining to reach a constitutional challenge to Section 5 in Northwest Austin Municipal Utility District No. 1 v. Holder. The Court now allows any kind of governmental unit (e.g., a county, a town, or even a utility district) within a preclearance jurisdiction to try to prove that its recent history of treatment of minorities in voting should exempt it from preclearance. After that decision, court watchers predicted that the constitutionality of the preclearance requirement would be back again (after all, we’re living in a post-racial society, aren’t we?); and they were right.
In 2012, no less than four cases are in the pipeline, hoping to make the Supreme Court’s cut. (In two of them, the Supreme Court must accept the appeal, if the state chooses to file one, but it’s too early to know whether the preclearance issue will be included in these appeals.) Though nothing will be resolved before Election Day, it is clear that the continued efficacy of this important tool in evaluating states’ voting laws is very much in doubt. Numerous studies have shown that racially discriminatory voting procedures persist in the preclearance jurisdictions. Nevertheless, the Supreme Court, in Chief Justice Roberts’ opinion in Northwest Austin, signaled some discomfort in continuing preclearance. He cited its unequal treatment of the states, the race-consciousness of the process, and the improvement in voting conditions for minorities, among other factors.
Of course, these factors and more were debated in the re-authorization of the Voting Rights Act in 2006, and Congress, by a wide margin, still determined that Section 5 continues to be necessary. Indeed, one need only review the “race-conscious” rhetoric coming from advocates of strict voter ID and proof of citizenship laws to know that racial discrimination is exactly what they are all about, and that we need preclearance as a check on this dangerous trend as much as we ever have.