Preclearance and Shelby County

How did preclearance work under Sections 5 and 4(b) of the Voting Rights Act?

Congress enacted the 1965 Voting Rights Act (VRA) in an effort to combat entrenched, systemic discrimination that prevented people of color from enjoying their right to vote under the Fourteenth and Fifteenth Amendments. Under Section 5 of the VRA, certain state or local governments that wished to amend their voting laws were required to receive “preclearance” fromthe U.S. Attorney General or a three-judge panel of the U.S. District Court for the District of Columbia so as to certify that the intended changes did not “deny or abridge the right to vote on account of race, color, or membership in a language minority group.”

Section 4(b) contained the formula for determining those state and local governments that would be subject to the Section 5 preclearance requirement. The formula, as it stood after the 1975 amendments to the VRA, contained two criteria. Jurisdictions that, as of November 1972, utilized a prohibited “test or device” (such as a literacy test) as a prerequisite for voting or voter registration were covered if less than half the voting-age population of that jurisdiction was registered to vote or did vote during the 1972 election.

While the preclearance requirement was initially set to expire after five years, amendments to the VRA in 1970, 1975, and 1982 reauthorized Section 5 and updated the formula under Section 4(b). The Supreme Court upheld the reauthorizations as constitutional under the Fifteenth Amendment in Georgia v. United States (1973), City of Rome v. United States (1980), and Lopez v. Monterey County (1999). Congress reauthorized Section 5 for 25 years in 2006, however it did not update the formula from the 1975 reauthorization.

How did Shelby County v. Holder (2013) affect Sections 5 and 4(b)?

The Supreme Court decided Shelby County v. Holder (2013) on the narrow question of whether Congress, in reauthorizing Section 5 under the 1975 coverage formula of Section 4(b), exceeded its authority under the Fourteenth and Fifteenth Amendments and thereby violated the Tenth Amendment and Article IV of the US Constitution. In a 5-4 decision on June 25, 2013, the Court struck down Section 4(b) on the grounds that the coverage formula violates the constitutional principles of federalism and “equal sovereignty of the states,” noting the disparate treatment certain states received under Section 4(b) was “based on 40 year-old facts having no logical relationship to the present day.”

In other words, the Court ruled Congress does not have authority to subject states to preclearance entirely because of past discrimination, without relying on more recent facts. Although Section 5 was not similarly struck down, the inability to use the coverage formula prescribed by Section 4(b) makes the preclearance requirement effectively inoperable. Since the ruling, several states previously subject to preclearance under Section 5 have enacted laws that have undone online registration, same-day registration, early voting, “Souls to the Polls” Sunday voting, and pre-registration for teens about to turn 18.

In Arizona, the ruling empowered Attorney General Tom Horne to issue an opinion requiring Arizona residents who registered with federal forms to provide proof of citizenship for voting in state and local elections. Those who registered federally are additionally barred from signing petitions for candidates or ballot initiatives.