"Preclearing" the Voting Rights Act.

Author:Ang, Desmond

THE VOTING Rights Act (VRA) of 1965 has been hailed as one of the greatest legislative achievements of the civil rights movement. Passed months after the Selma to Montgomery marches, the Act prohibits the denial or abridgement of "the right to vote on account of race or color." The effects of VRA on minority enfranchisement were immediate. Between the 1964-68 presidential elections, black voter registration rates increased 67% among Southern states.

The Act achieved this through two principal mechanisms. The first was the prohibition of literacy tests, which were used throughout the Jim Crow era to disenfranchise Southern blacks. Section 5 of the VRA established a second and more-controversial mechanism: a Federal oversight process commonly referred to as "preclearance."

Jurisdictions subject to preclearance (henceforth called "covered jurisdictions") were prohibited from implementing any new electoral rule without first obtaining Federal approval. While preclearance's geographic purview was limited only to areas that met certain historical criteria, the scope of its protections was expansive and encompassed all future changes affecting voting in those areas.

Thus, preclearance restrictions, which have been called the most-effective means of preventing racial bias in voting, were designed as a broad prophylaxis against voter discrimination, shifting onto covered jurisdictions the burden of proving ex ante that new voting rules did not have a "discriminatory purpose" and would not have a "discriminatory effect."

Since its inception, preclearance oversight alternately has been praised and criticized as extraordinary legislation otherwise unfamiliar to our Federal system. These arguments came to a head in 2013 in Shelby County v. Holder, in which the Supreme Court ruled that continued coverage based on historical--rather than current--measures of discrimination is unconstitutional. As a result, until and unless Congress enacts a new coverage formula, previously covered jurisdictions no longer are subject to Federal oversight.

Immediately following the Shelby ruling, lawmakers in several previously covered areas enacted voting changes, many of which have been challenged in Federal courts. Alabama, Mississippi, North Carolina, and Texas introduced voter ID requirements, while Florida, Georgia, and Virginia sought to purge their voter rolls of thousands of eligible minorities.

Though Republicans have justified these measures as necessary to...

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