Reinstituting Preclearance: To Protect Our Elections, We Must Stop Harmful Restrictions Before They Become Law

The state of our democracy and the sanctity of our elections have come into greater and greater question in recent years, and significant overhauls of our voting systems have been proposed in Congress, although little progress has been made. Although the US has a long history of voting systems being less than entirely democratic, recent anti-democratic measures raise serious concerns, with at least 29 states passing more than 94 laws that make it more difficult to vote. Hundreds of similar laws have been proposed in the last ten years.1 In order to understand what went wrong and how we can protect our democracy, we must look at what has changed.

In 2013, in Shelby County v. Holder, the Supreme Court gutted Section 5 of the Voting Rights Act (VRA). Section 5, also referred to as preclearance, required certain states and jurisdictions with a history of voting rights violations to get the approval of the federal government before enacting new voting laws or regulations.2 Shelby County may have ended preclearance, but it actually upheld the constitutionality of preclearance. Instead, the Court invalidated Section 4(b) of the VRA, or the “coverage formula,” which determines what jurisdictions are subject to preclearance.3 The Court found that the formula in Section 4(b) was outdated as it was based on voting rights violations in the 1960s and that developments since then make Section 4(b) an unconstitutional violation of states’ right to control their elections.4 In essence, the Court found that the racism that motivated restrictive voting laws in the 1960s was no longer prevalent or relevant enough to justify federal involvement in these states’ election laws. The Court did not challenge that racial discrimination in the 1960s justified federal involvement but argued that the covered states had changed enough that continuing to monitor them was unconstitutional. Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented, asserting that the volume of restrictions prevented by preclearance and the evidence that racial discrimination in voting continued in these jurisdictions justified maintaining the existing structure of preclearance.5 The dissent argued that the majority’s opinion implied there was no longer racism or discrimination at ballot boxes—an implication with which they disagreed and which has been proven seriously wrong. 

Following Shelby County, previously covered states and many others have instituted racially discriminatory voting laws, and the 2020 redistricting cycle has been marred by extreme racial gerrymandering. Although lawsuits have been filed—indeed, some have been successful— these lawsuits are expensive and take years to play out, meaning these restrictions impact elections before they are declared unconstitutional. For instance, in Allen v. Milligan, decided by the Supreme Court in June 2023, the Court held that Alabama’s recent redistricting had racially discriminated against Black voters by creating only one majority-Black congressional district in a state with a Black population of more than 25%.6 Alabama again challenged this ruling and attempted to dodge compliance, but the Court stood firm.7 New, less gerrymandered districts will be used in future elections, but the current House of Representatives delegation from Alabama is the product of this unconstitutional gerrymandering. Preclearance would not have allowed this map to take effect. 

In striking down the formula for determining which jurisdictions fall under preclearance but upholding the idea of preclearance, the Court has kept the door open to a new formula to be determined by Congress. Some in Congress recognized this opening and the importance of preclearance just a year after Shelby County, with the introduction of the Voting Rights Amendment Act of 2014, which ultimately failed to gain much traction.8 Other attempts to reinstate preclearance failed in 2018 and 2021.

Regardless of the difficulties of passing a new formula for preclearance, it is imperative that we come to a consensus that reinstitutes preclearance. Allowing people to vote and ensuring everyone is able to have a say in our democracy should not be controversial. Preclearance, as a part of larger renewals of the VRA, was explored and reaffirmed nearly unanimously over nearly forty years, many times by Republican-led congresses, in 1970, 1975, 1982, and 2006.9 And we need democracy reform more now than ever, as faith in the democratic system falls to concerning levels. 

Following Shelby County, the only route to prevent unconstitutional attacks on voting rights has been Section 2 of the VRA. Under Section 2, voters can sue to block voting laws or practices that discriminate based on race, color, or language.10 However, a November 20, 2023 decision by the Eighth Circuit found that there is no “private right of action” under Section 2.11 This would mean that only the federal government could bring suit against jurisdictions for discrimination in violation of the VRA. As most voting rights litigation is brought by private citizens and civil rights groups and the federal government has limited capacity to file challenges, this would be a devastating blow to the VRA, rendering it nearly unenforceable. The Supreme Court is unlikely to uphold such a drastic curtailing of the VRA, although it has proven hostile to it in the past. As challenges continue to undermine the VRA, it is necessary that Congress take action to strengthen and expand voting rights protections.

Although the Supreme Court’s method was drastic, it was not entirely wrong in Shelby County. In fact, the formula for determining preclearance was outdated. Which jurisdictions require the approval of the federal government should be continuously updated, and the list should be much longer than those covered pre-Shelby County. Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia were covered in their entirety, along with jurisdictions in six additional states.12 This list includes some of today’s worst offenders, but North Carolina, Ohio, Arkansas, Florida, Pennsylvania, and Maryland have all committed substantial discriminatory voting practices and/or extreme racial gerrymandering.13 A formula to truly address the ills of voting legislation and regulation must guard against not only discrimination based on race, color, or language. The formula must also consider restrictions that have the effect of discrimination, even if such an effect was not intended; far too many restrictions have survived on the argument that they did not intend to discriminate, even if that was the substantial result. 

The John Lewis Voting Rights Advancement Act (VRAA), introduced in 2021, outlines one option for a preclearance formula that would dramatically improve the state of voting rights. Under the VRAA, states would be covered by preclearance if they or their localities committed at least ten voting rights violations—with at least one committed by the state as a whole—or if localities committed at least 15 violations in the past 25 years.14 Subdivisions of non-covered states would be covered if they committed at least three violations in the past 25 years.15 An action is considered a voting right violation if it was declared unconstitutional or is determined to be in violation of the VRA, if it was denied under preclearance, or if litigation against the act or practice ends with the repeal of the act and the jurisdiction admits liability.16 The Department of Justice (DOJ) would have the final say over whether an action is a violation and if a jurisdiction will be covered. There is also a process by which jurisdictions may exit preclearance. The initial judgment of preclearance lasts ten years, and a state may exit if it no longer qualifies under the formula or if it has no violations in a ten-year period.17

Beyond jurisdiction-based preclearance, certain types of voting changes would be subject to preclearance nationwide. This is because certain changes are nearly always discriminatory.18 These practices include creating at-large districts in places with large minority populations and changing jurisdiction boundaries to remove minorities. Imposing stricter requirements on documentation or proof of identity to vote, reducing or altering multilingual voting materials, reducing polling places, voting opportunities, including absentee voting, and making it easier to purge voter registration rolls in places with large minority populations also constitute acts subject to nationwide preclearance.19 

In addition to the existing rolling exits to preclearance, jurisdictions may apply to be bailed out if they meet certain criteria. This provision is found in the VRA, but an update would make the process easier by eliminating the need to file a lawsuit. Jurisdictions with no violations in the past ten years or that have worked to expand voting access would be eligible for an administrative bailout.20 The DOJ would publish a list of eligible jurisdictions and jurisdictions that could apply for a bailout, while members of the public may oppose the bailout during a review period.21

It is critical that any updated preclearance formula exists on a rolling basis so that jurisdictions are consistently evaluated on their performance. The historic patterns of voting restrictions do not necessarily reflect existing moves to restrict voting, and today’s trends are largely increasing restrictions in an expanding number of jurisdictions. Jurisdictions must be able to exit preclearance if they have displayed a history of respect for voting rights, just as any jurisdiction with a pattern of violating voting rights should be subject to preclearance. Not only is this more accurate than a non-rolling criterion for preclearance, but it also would address the Court’s ruling in Shelby County.

In addition to addressing discriminatory practices based on race and language, preclearance must expand to discriminatory practices based on political party. The partisan nature of voting laws has increased in recent years, which often but not always overlaps with racially discriminatory voting practices. Over the past 27 years, the number of competitive congressional districts—districts that Republicans or Democrats have a reasonable chance of winning—has fallen from 108 to 16.22 This means only four percent of congressional districts are truly competitive, and it has had devastating impacts on polarization and partisanship in the halls of Congress and beyond.23 Voting laws working to reduce the turnout of specific groups in order to influence elections are found across this country and constitute a significant challenge to the sanctity of our democracy and to voting rights. Partisan-motivated voting laws or practices should be considered a violation of voting rights law, qualify as a violation under preclearance criteria, and be blocked by the DOJ in preclearance-ruled jurisdictions. 

As of June 23rd, 2023, in the ten years since Shelby County, nearly one hundred restrictive voting laws have been passed in twenty-nine states.24 Roughly a third of these laws were passed in states previously subject to preclearance and very likely would not have gone into effect if they had still been subject to it. Clearly, preclearance in its pre-Shelby County form would have made an impact on the voting laws of today, but for preclearance to be truly effective, it must be expanded to include many other states. 

Restrictive voting laws and practices are bad for democracy and bad for America. The Voting Rights Act, one of the most effective civil rights laws in American history, is critical to protecting our democracy, but decades of attacks have chipped away at its enforcement. As our democratic system and our elections face attacks, it is essential that nefarious plans to restrict voting are stopped before they can interfere in our elections. A new formula for preclearance, which is rolling and protects our elections nationwide, is critical if we hope to strengthen our democratic system and take back our voice.