Section 5Edit
Section 5 is a central, if controversial, provision of the Voting Rights Act designed to prevent changes to voting laws or practices in certain jurisdictions from having a discriminatory effect. The core tool it uses is preclearance: before any covered jurisdiction can implement a change to how people vote, the change must receive prior approval from the Department of Justice or from a federal court. This mechanism was created in the wake of decades of tactics aimed at suppressing turnout among black voters and other minority groups, with the goal of ensuring that sorely needed reforms could not be used to shrink access to the ballot.
The design rests on two pillars. First, a list of covered jurisdictions identified by a separate provision, commonly referred to by the coverage formula in Section 4(b), which included states and subdivisions with a history of discriminatory voting practices. Second, a preclearance process that subjected any contemplated change to voting procedures—such as altering registration requirements, changing polling locations, or modifying ballot access rules—to federal scrutiny before it could take effect. Proponents argued this arrangement was necessary to overcome local resistance and to lock in fair access to the ballot, while critics said it imposed a blanket federal control on state decisions that, in many cases, were already moving toward modernization.
In practice, the preclearance regime sought to create a uniform guardrail against discriminatory changes, rather than leaving such decisions to state and local authorities alone. Supporters pointed to the improvements in turnout and participation that followed some blocked changes, and to the broader principle of ensuring that the franchise is not compromised by administrative changes that can be used to deter voters. Opponents, particularly those concerned with federalism and the costs of regulatory delay, argued that the mechanism was an outdated instrument that treated diverse jurisdictions as if they faced the same historical constraints, and that it could block legitimate reforms.
Historical design and operation
- Section 5 applies to changes in electoral laws or practices in jurisdictions covered by the Section 4(b) formula, requiring preclearance from the Department of Justice or a federal court in the District of Columbia before taking effect.
- The range of changes subject to preclearance includes procedural shifts such as changes to voter registration, polling hours, ballot formats, and polling place locations, as well as redistricting and other procedures that could affect access to the ballot.
- The political and legal framework surrounding Section 5 rests on the premise that certain jurisdictions had a track record of discriminatory practices that required ongoing federal supervision to ensure fair access.
Status after Shelby County v. Holder
A turning point came with the 2013 Supreme Court decision in Shelby County v. Holder. The Court held that the coverage formula in Section 4(b) was unconstitutional as applied, effectively striking down the automatic nationwide preclearance regime for future changes. The opinion argued that the formula was outdated and violated principles of federalism by singling out jurisdictions based on past practices without a workable mechanism to update the coverage in light of contemporary conditions. Since Shelby County, no jurisdictions are federally precleared solely under Section 5’s formula, though some limited oversight can arise from other federal statutes or court orders, and Congress has discussed potential new approaches.
From a practical standpoint, Shelby County shifted the debate from “do we need preclearance?” to “how should preclearance be designed in a way that respects federalism while protecting the franchise?” Critics of the decision argued that it removed a crucial check on discriminatory changes in voting procedures, while defenders said it restored constitutional balance and encouraged states to take responsibility for fair elections. The right-of-center view tends to emphasize the latter—federalism, local experimentation, and the caution that blanket federal controls can shield bad or inefficient reforms, while acknowledging that a modern approach could rebuild some targeted protections if crafted with bipartisan buy-in.
Debates and controversies
- The core controversy: Is a centralized preclearance regime necessary to safeguard minority access to the ballot, or is it an overreach that undermines state and local election administration?
- From a perspective that prizes federalism and state experimentation, the argument centers on whether a modernized, objective, and narrowly tailored oversight mechanism could achieve protection against discrimination without stalling legitimate reforms.
- Supporters emphasize that preclearance helped prevent changes that would have suppressed turnout among black voters and other minorities during critical periods of reform; critics contend that the mechanism is outdated, inefficient, and disproportionately burdens jurisdictions that have already moved toward better election administration.
- In debates about reform, proponents of a revised framework often propose criteria that are data-driven and time-bound, with a focus on proven discriminatory effects rather than blanket coverage, and they advocate for a federal framework that can adapt to current conditions rather than rely on allocations from the 1960s.
Policy implications and reform proposals
- A modern reform could retain core protections for the franchise while shedding the blanket character of the old coverage formula. Proposals include targeted preclearance for changes with demonstrable discriminatory effects, or a nationwide baseline of election standards that preempts only changes shown to reduce access for protected groups.
- Advocates for reform emphasize preserving federal protections against discrimination while enhancing states’ ability to administer elections efficiently and responsibly. They argue for a regime that uses objective data, transparent criteria, and a bipartisan process to restore confidence in the system.
- Opponents of broad preclearance return stress that a contemporary framework should respect state sovereignty, reduce regulatory delays, and avoid encouraging artificial hurdles to modernization. They favor approaches that focus on outcomes and evidence of discrimination rather than on blanket oversight.
- The broader policy conversation includes considerations of voter ID laws, early voting provisions, and the balance between preventing discrimination and enabling smooth election administration, with debates about how to reconcile these goals in a way that is consistent with constitutional norms and practical governance.