WASHINGTON (November 10, 2021)—Voting rights legislation is a key priority for Democrats in the 117th Congress. Among various proposals, many include amending the Voting Rights Act. Specifically, many Democrats are eyeing updates to the law’s preclearance formula, which was partially struck down by the Supreme Court in the 2013 case Shelby County v. Holder.

One section of the Voting Rights Act (VRA) required certain local governments “to obtain federal permission before enacting any law related to voting,” which is a system known as preclearance. In 2013, the Supreme Court in Shelby County v. Holder held that the preclearance structure, as written, was unconstitutional but invited Congress to create a new preclearance system that “speaks to current conditions.”

Many efforts are aimed at revising the VRA’s coverage formula, but recent proposals—like implementing a practice-based preclearance regime or a preclearance formula that considers a quarter-century’s worth of potential misconduct—would likely not pass constitutional muster.

In a new policy study, R Street resident fellow Anthony Marcum says that if Congress wishes to properly update the VRA’s preclearance formula, it should avoid the pitfalls of recent attempts and consider a narrow formula that recognizes the limits set by Shelby County and the benefits of largely decentralized elections.

“Congress’s challenge is to create a legislative formula that rightfully prevents systemic and discriminatory voting laws while balancing state sovereignty. The task is not easy, but it is worthwhile,” states Marcum.

Read the full study here.

Top 3 Points:

1) One section of the Voting Rights Act (VRA) required certain local governments “to obtain federal permission before enacting any law related to voting,” a system known as preclearance. In 2013, the Supreme Court in Shelby County v. Holder held that the preclearance structure, as written, was unconstitutional but invited Congress to create a new preclearance system that “speaks to current conditions.”

2) Efforts remain to revise the VRA’s coverage formula. But recent proposals—like implementing a practice-based preclearance regime or a preclearance formula that considers a quarter-century’s worth of potential misconduct—would likely not pass constitutional muster.

3) If Congress wishes to properly update the VRA’s preclearance formula, it should avoid the pitfalls of recent attempts and consider a narrow formula that recognizes the limits set by Shelby County and the benefits of largely decentralized elections.