Rocking the Vote: How Preclearance Became Powerless

• Author: Theresa Anne Bodwin
• Position: Michigan State University College of Law
• Pages: 502-542

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights Press

rst published online 26 March 2014

502

ROCKING THE VOTE

HOW PRECLEARANCE BECAME POWERLESS AND THE WAY TO BRING

THE POWER BACK

THERESA ANNE BODWIN

Michigan State University College of Law

E-mail: bodwinth@msu.edu

is article provides a short summary of the history of voting rights in the United

States. Additionally, this article provides a detailed report on the Voting Rights Act

and the amendments to the Voting Rights Act. Specically, this article focuses on the

recent changes to the Voting Rights Act, which were brought about by the ruling in

Shelby County v. Holder. e Supreme Court ruled in Shelby County v. Holder,

that Section 4(b) of the Voting Rights Act was unconstitutional. Although the Court

ruled that the coverage formula of Section 4(b) was unconstitutional, the Court

made no ruling on preclearance, which is covered in Section 5. Moreover, the Court

stated that Congress is able to pass a new formula to replace Section 4(b). is article

proposes a new formula to replace the old formula in Section 4(b). e new formula

should be based o of voter turnout data from the three most recent Presidential

Elections. However, the most recent election should be weighted more. e formula

should then look at the minority voter turnout in the three most recent Presidential

Elections. If the minority voter turnout in a specic jurisdiction or state is more than

10 percent, then the jurisdiction or state will be subject to preclearance of Section 5 of

the Voting Rights Act. is article unfolds in the following way: rst, there is a brief

history of the Voting Rights Act; second, the Voting Rights Act and the amendments

to the Voting Rights Act are discussed; third, evidence of current discrimination in

voting is provided; and nally, the potential new formula is described.

Keywords: Civil Rights and Discrimination, Constitutional Law, Legislation, Politics

Democracy, General Election, Law Reform, Presidentialism.

Theresa Anne Bodwin

ROCKING THE VOTE: HOW PRECLEARANCE BECAME POWERLESS

503

I. INTRODUCTION

On June 25, 2013, the United States (U.S.) Supreme Court declared

Section 4(b) of e Voting Rights Act (VRA) unconstitutional.1 e

U.S. Supreme Court halted the power of the U.S. Attorney General

and the U.S. District Court of the District of Columbia (D.C.) to

preclear new voting laws made by various states.2 Preclearance requires

the U.S. Attorney General or U.S. District Court of D.C. to examine a

covered jurisdiction’s voting laws to ensure that the laws do not have a

discriminatory purpose or intent.3 Ensuring fair voting to all American

citizens has been a point of contention since the founding of the U.S.4 On

August 6, 1965, President Lyndon B. Johnson signed the VRA into law.5

Section 5 of the VRA requires that the U.S. Department of Justice preclear

any voting qualication, standard, practice, or procedure.6 Section 5 of

the VRA only applies to covered jurisdictions.7 Covered jurisdictions are

determined by a formula in Section 4(b) of the VRA, which requires any

state or county to be precleared if they maintained a test or device as of

November 1, 1964, to prevent eligible voters from voting.8 Additionally,

the jurisdiction must have less than fty percent of the state’s or county’s

voting population registered to vote, or less than fty percent of a state’s

or county’s voting population voted in the last election.9 Before the ruling

by the U.S. Supreme Court, the following states were considered a fully

1. Shelby County v. Holder, No. 12-96 slip op. 1, 24 (U.S. June 25, 2013), available

at http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf.

2. Id.

3. Id.

4. See Introduction to Federal Voting Rights Laws, U.S.D.O.J., http://www.justice.

gov/crt/about/vot/intro/intro_a.php (last visited Nov. 19, 2013) [hereinafter

Introduction to the Federal Voting Rights Laws].

5. See Lyndon B. Johnson, Remarks in the Capitol Rotunda at the Signing of the Voting

Rights Act, L B J P L, http://www.lbjlib.

utexas.edu/johnson/archives.hom/speeches.hom/650806.asp (last updated June

6, 2007).

6. Voting Rights Act of 1965, § 5, 42 U.S.C. § 1973c (1965) (prior to 1970, 1975,

1982, and 2006 amendment), available at http://library.clerk.house.gov/reference-

les/PPL_VotingRightsAct_1965.pdf.

7. Id.

8. Id. at §4(b).

9. Id.

The Indonesian Journal of International & Comparative Law Volume I Issue 2 (2014) at. 502–542

Theresa Anne Bodwin

504

covered state jurisdiction: Arizona, Texas, Alaska, Louisiana, Mississippi,

Alabama, Georgia, South Carolina, and Virginia.10 In addition, the

following states were partially covered by Sections 4(b) and 5 of the

VRA: California, South Dakota, Florida, North Carolina, New York, and

Michigan.11

ere are a myriad of cases that challenge Sections 4(b) and 5 of

the VRA.12 For example, in Northwest Austin Municipal Utility District

Number One v. Holder, the U.S. Supreme Court did not declare Sections

4(b) or 5 unconstitutional.13 However, in Shelby County v. Holder, the

U.S. Supreme Court ruled Section 4(b) of the VRA unconstitutional.14

e ruling in Shelby County v. Holder, did not declare Section 5

unconstitutional.15 e Court specically stated in Shelby County v.

Holder, that Congress is able to develop a new present-day strategy to

create a covered jurisdiction in order to subject states or jurisdictions to

preclearance.16 As the VRA currently stands preclearance still exists, but

no jurisdiction will be subject to preclearance unless Congress replaces

Section 4(b) with a new formula.17 Soon after the decision by the Supreme

Court, states began enacting laws to signicantly restrict the right to

vote.18 Congress should enact a replacement formula for Section 4(b) to

be current with the country’s current discrimination in voting standards

and laws. ere are various ways scholars suggest the development of a

new jurisdiction coverage formula.19 However, the most ecient way to

10. Justin Levitt, All About Redistricting, L L S L.A., http://redistricting.

lls.edu/who-preclear.php (last visited Nov. 19, 2013).

11. Id.

12. See Shelby County, supra note 1, at 1; see Nw. Austin Mun. Util. Dist. No. One v.

Holder, 557 U.S. 193, 193 (2009).

13. Holder, supra note 12, at 193-94.

14. Shelby County, supra note 1, at 2.

15. Id.

16. Id. at 4.

17. Id.

18. Michael Cooper, After Ruling, States Rush to Enact Voting Laws, N.Y. T (July

5, 2013), available at http://www.nytimes.com/2013/07/06/us/politics/after-

Supreme-Court-ruling-states-rush-to-enact-voting-laws.html?_r=0 (last visited

Feb. 5, 2014).

19. e Formula Behind the Voting Rights Act, N.Y. T (June 22, 2013), http://www.

nytimes.com/interactive/2013/06/23/us/voting-rights-act-map.html [hereinafter

e Formula Behind the VRA].