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
Date Written: 2006
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.
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