The End of Preclearance As We Knew It: How the Supreme Court Transformed Section 5 of the Voting Rights Act

50 Pages Posted: 21 Aug 2011  

Peyton McCrary

Government of the United States of America - Civil Rights Division; George Washington University - Law School

Christopher B. Seaman

Washington and Lee University School of Law

Richard Valelly

Swarthmore College

Date Written: 2006

Abstract

Section 5 of the Voting Rights Act of 1965 requires certain jurisdictions with a history of racial discrimination to obtain “preclearance” of proposed electoral changes from the United States Department of Justice or a three-judge panel in the United States District Court for the District of Columbia. This provision, which is set to expire in August 2007, has successfully reduced racial and ethnic discrimination in voting.

The United States Supreme Court determined in a 5-4 decision, Reno v. Bossier Parish School Board, 528 U.S. 230 (2000), that Section 5's prohibition on the enforcement of electoral changes which have a discriminatory purpose does not apply to electoral changes that were not intended to “retrogress,” or make worse, the position of minority voters. This interpretation upset a long-standing consensus among executive, legislative, and judicial actors that Section 5 prohibited all changes enacted with an unconstitutional discriminatory purpose, not just those which made minority voters worse off. This Article explains how the Bossier majority dramatically transformed Section 5 and demonstrates, through an empirical analysis of the Justice Department's Section 5 objection letters, how it significantly weakened the statute's ability to protect minority voting rights. It concludes by arguing that Congress should amend Section 5 in 2007 to supercede the Bossier decision.

Suggested Citation

McCrary, Peyton and Seaman, Christopher B. and Valelly, Richard, The End of Preclearance As We Knew It: How the Supreme Court Transformed Section 5 of the Voting Rights Act (2006). Michigan Journal of Race & Law, Vol. 11, p. 275, 2006. Available at SSRN: https://ssrn.com/abstract=1913565

Peyton McCrary

Government of the United States of America - Civil Rights Division ( email )

Washington, DC
United States

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Christopher B. Seaman (Contact Author)

Washington and Lee University School of Law ( email )

Lexington, VA 24450
United States
540-458-8520 (Phone)

Richard Valelly

Swarthmore College ( email )

500 College Ave
Swarthmore, PA 19081
United States

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