Rethinking District of Columbia Venue in Voting Rights Preclearance Actions
13 Pages Posted: 1 Oct 2014
Date Written: September 6, 2014
In 2013 the Supreme Court in Shelby County v. Holder vitiated the preclearance provision of the 1965 Voting Rights Act, Section 5, by declaring unconstitutional the coverage provision of Section 4. What garnered virtually no attention in the decision or subsequent proposals to amend the preclearance provision was the requirement in Section 5 that applications for judicial preclearance must be filed before a three-judge district court in the District of Columbia. This essay argues that this exclusive venue in DC be revisited in the statutory efforts to revive preclearance. Venue of such actions in DC was a controversial issue when preclearance was first passed, and its initial reauthorizations, but the controversy eventually faded. This essay argues that the debate should be revived. The original reasons for exclusive venue are no longer sound or necessary today. There is no present need for reasons of uniformity or expertise to vest exclusive venue of preclearance actions in DC, and should Section 5 be statutorily revised, the jurisprudence under that provision could benefit from the application of normal venue rules, which would permit percolation of issues in federal courts throughout the country. It might also make the revival of some sort of preclearance more politically palatable. Preclearance enforcement actions were already litigated outside of DC, and there are good reasons to extend all future preclearance litigation in the same way.
Keywords: Voting Rights Act, preclearance, venue, Section 5
JEL Classification: K3, K39, K41
Suggested Citation: Suggested Citation