Preclearance and Politics: The Future of the Voting Rights Act

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Paige Richardson, Associate Member, University of Cincinnati Law Review

This article was originally published in Volume 89, Issue 4 of the University of Cincinnati Law Review. Click here to read the article in full.

I. Introduction

In 1965, ninety-five years after the ratification of the Fifteenth Amendment, Congress passed the Voting Rights Act (the “VRA” or the “Act”). The Act addressed the discriminatory practices and procedures utilized by some regions of the United States to disenfranchise Black and other non-white voters. The years following the ratification of the Fifteenth Amendment showed federal action must be supplemented to address state resistance to equal voting rights, particularly for Black Americans. Section 2 of the VRA prohibits discriminatory voting practices on a national level, while Sections 4 and 5 implement a coverage formula to determine which regions must seek preclearance from the federal government for changes to voting practices. Section 5 of the VRA was originally written to expire after five years. However, the Act enjoyed bipartisan support and was consistently renewed until 2006. The 2006 Amendments failed to update the coverage formula, which had last been updated in 1975. For this reason, in Shelby County v. Holder, the Supreme Court of the United States declared the coverage formula in Section 4 of the VRA unconstitutional. Because the coverage formula was held unconstitutional, federal preclearance measures in Section 5 of the VRA could no longer be enforced, which destroyed the effectiveness of the VRA as a whole. Since Shelby County, Congress has not revitalized the VRA through new legislation or amendments.

In Section II, this Comment will analyze the VRA itself before moving into a historical analysis of voting rights litigation, specifically in connection with Sections 4 and 5—the coverage formula and preclearance sections of the Act. Next, Section II will review the Court’s decision in Shelby County. Section III will discuss the continuing forms of discrimination faced at voting polls and the future viability of VRA amendments. A specific inquiry into the John Lewis Voting Rights Advancement Act (“John Lewis Act”) will trace the path this bill— considered the most likely contender to revitalize the VRA—must take not only to pass into law, but also to retain legal status in the face of potential legal challenges at the Supreme Court. Finally, Section IV will conclude by considering the utility of alternative methods should amendments to the VRA not pass Congress or the Supreme Court.

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