R Street Institute
Policy Studies Governance

Preclearance as a Deterrent, Not as Detention

by Anthony Marcum
Nov 10, 2021
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Author

Anthony Marcum
Former Resident Fellow, Governance

Key Points

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.”

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.

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.

Press Release

It’s Time to Act on Voting Rights

INTRODUCTION

Following the “Bloody Sunday” attack on peaceful protestors in Selma, Alabama, Congress passed the Voting Rights Act of 1965, which “employed extraordinary measures” to combat the “extraordinary problem” of voting discrimination.

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

So far, Congress has been unable to update the stricken preclearance formula. In future efforts, lawmakers should create a new preclearance framework that acknowledges the limits set by Shelby County and the virtues of largely decentralized elections.

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