Section 5 Of The Voting Rights ActEdit
Section 5 of the Voting Rights Act is the preclearance mechanism that once required certain states and jurisdictions to obtain federal approval before making changes to voting procedures. Enacted in 1965 amid a broader push to eradicate discriminatory practices in American elections, Section 5 was designed to prevent backsliding by ensuring that major changes—such as altering district boundaries, closing polling places, or changing registration and turnout rules—could not be implemented in a way that would significantly restrict minority voters without federal scrutiny. The aim, in the eyes of supporters, was to provide a structural safeguard against quiet or deliberate backsliding after reforms had begun to open the franchise. In practice, the provision applied to covered jurisdictions chosen by a separate coverage formula, most famously contained in Section 4(b) of the Act, which linked preclearance to historical patterns of discrimination.
From a perspective that emphasizes limited federal authority and strong state and local responsibility for election administration, Section 5 was a meaningful, if controversial, tool for ensuring that changes to elections did not undermine equal opportunity in participation. Proponents argued it acted as a necessary backstop, particularly in the decades following 1965, to counteract attempts to dilute minority influence through procedural changes. Critics, however, saw it as an inflexible mechanism tied to a 1960s-era formula, one that imposed centralized oversight on jurisdictions that had already pursued reforms and modernization. The legal and political debate around Section 5 intensified when the Supreme Court confronted the cross-cutting issue of whether a single, permanent formula could justify ongoing federal prerogatives in a changing elections landscape.
How Section 5 works
Coverage and preclearance: Section 5 requires that changes to voting procedures in covered jurisdictions receive preclearance from either the U.S. Department of Justice or the U.S. District Court for the District of Columbia before taking effect. This means proposed changes are evaluated for potential retrogression in minority voters’ access or influence. Section 5 of the Voting Rights Act.
The coverage formula: The jurisdictions subject to preclearance were determined by a separate formula found in Section 4 of the Voting Rights Act. That formula, crafted in 1965, looked at historical patterns of discrimination, including the use of tests or devices to restrict voting and the level of nonwhite registration or turnout in the 1960s. The intent was to capture places with a pattern of discriminatory practices; however, the formula was criticized for tying modern governance to data from a past era. The coverage remained in place for decades, even as conditions changed in many states.
What changes required scrutiny: Under Section 5, a broad array of changes to election administration—such as redistricting, changes to polling locations, voting procedures, or registration rules—could be halted or conditioned on federal approval if they were likely to impede minority voting rights. Supporters argue this provided a uniform, national risk-management approach to major changes; opponents contend it treated many jurisdictions with a one-size-fits-all federal overlay.
Relationship to other provisions: Section 5 interacts with the broader framework of the Voting Rights Act, including Section 2’s protections against vote dilution and other discriminatory practices. Together, these provisions form a multi-pronged approach to safeguarding access to the ballot. Voting Rights Act Section 2 of the Voting Rights Act.
Coverage and the fate of the formula
The origin of the coverage formula: The 4(b) formula tied preclearance to conditions that existed in the mid-1960s, making it, in effect, a temporal snapshot rather than a dynamic standard. This structure led to ongoing disputes about which jurisdictions were subject to preclearance and how those judgments should be updated to reflect current realities. Section 4 of the Voting Rights Act.
Shelby County v. Holder (2013): A landmark decision by the Supreme Court held that the 4(b) coverage formula was unconstitutional as applied because it was based on data that the Court found to be outdated and therefore not a reasonable means of determining which jurisdictions should be subject to preclearance. The ruling did not eliminate Section 5 itself, but it effectively suspended the preclearance mechanism for all jurisdictions unless Congress crafts a new, modern coverage formula. This decision intensified the debate over whether federal oversight of election changes should continue in any form and, if so, how it should be structured. Shelby County v. Holder.
Post-Shelby landscape: In the wake of Shelby, the preclearance mechanism is not automatically available to any jurisdiction unless Congress passes new legislation with a revised coverage formula. This has left a gap in the original architecture of the Voting Rights Act, prompting renewed discussion about how best to safeguard voting rights without imposing outdated or overly broad federal controls. Voting Rights Act.
Controversies and debates from a conservative-leaning perspective
Federalism and local accountability: A central argument is that election administration is most effective when local officials are accountable to their voters and operate under standard state law, with court remedies available for discriminatory practices. The preclearance regime, critics say, imposed a federal veto on local decisions, often based on historical data rather than current performance, and it could chill legitimate reforms aimed at modernization or cost-saving measures.
Outdated mechanism vs. modern risk: Critics contend that floorboards built in the 1960s do not reflect the complexity of today’s election environment, which can include decentralized administration, technology-driven voting systems, and evolving forms of participation. They argue that modern, nationwide anti-discrimination enforcement—such as stronger Section 2 litigation and better oversight of discriminatory practices—can achieve the same protective goals without blanket oversight of entire jurisdictions.
The burden on jurisdictions with improving practices: Some states and localities that have implemented reforms to increase accessibility argue that preclearance represents an unnecessary obstacle to policy experimentation and improvement. In this view, the process can deter well-intentioned changes that would expand access to the ballot, particularly in jurisdictions that have demonstrated a commitment to fair and transparent administration.
Why the critiques of the critiques are seen as misguided by supporters: Advocates for preserving or reforming preclearance often respond that a federal backstop is still needed to guard against backsliding, especially in periods of political contention or in the wake of significant electoral change. They argue that a neutral, enforceable standard backed by federal authority can deter discriminatory practices that might otherwise be pursued under the banner of "local control" but with real consequences for minority participation. They also point out that the United States Constitution and the laws enacted under it provide a framework for balancing federal oversight and state sovereignty, with voting rights protections playing a central role.
Woke criticisms and why some supporters consider them misdirected: Critics of the conservative perspective sometimes accuse support for Section 5 or related protections of being discriminatory or unduly paternalistic. From the right-leaning viewpoint outlined here, those criticisms are often unnecessary or counterproductive, since the core aim is to prevent discriminatory effects and to maintain a fair electoral process. The debate centers on the appropriate instrument—federal preclearance versus robust enforcement of existing anti-discrimination provisions and improvements in election administration—rather than on denying that minorities should have equal access to the ballot. Fourteenth Amendment Fifteenth Amendment.
Contemporary policy directions: In the absence of a new coverage formula, some policymakers emphasize strengthening general anti-discrimination enforcement, improving election administration through state-led reforms with federal oversight only in cases of proven discrimination, and pursuing targeted, bipartisan reform to reduce litigation costs and uncertainty while still protecting minority voting rights. The discussion often turns to how best to preserve both the integrity of elections and the accountability mechanisms that ensure fair access for all eligible voters. United States Supreme Court Section 2 of the Voting Rights Act.