A Modern Preclearance Formula
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A modern preclearance formula is a contemporary, evidence-based rule for identifying jurisdictions that must obtain federal approval before implementing election-law changes because of a recent record of voting-rights violations.
Before 2013, the Voting Rights Act used a formula based largely on voting data from the 1960s and 1970s. In Shelby County v. Holder (2013), the Supreme Court did not strike down preclearance itself (Section 5). Instead, it struck down the formula (Section 4(b)) that determined which jurisdictions were covered, holding that Congress had relied on outdated data.
A modern formula would attempt to address the Court’s objection by using recent evidence rather than decades-old statistics. For example, Congress could require preclearance for jurisdictions that, during the previous 10–15 years:
- Had repeated court findings of racial discrimination in voting.
- Had voting laws struck down under the Voting Rights Act.
- Entered into consent decrees involving voting-rights violations.
- Demonstrated a pattern of practices that diluted minority voting strength.
Under such an approach, coverage could change over time. A jurisdiction with a recent history of violations might become subject to preclearance, while a jurisdiction with no recent violations might not.
Supporters argue that this would restore the preventive function of the Voting Rights Act while responding to the Supreme Court’s demand for current evidence. Opponents argue that even a modern formula could raise concerns about federal intrusion into state election administration.
One example is the proposed John R. Lewis Voting Rights Advancement Act, which would establish a new coverage formula based on recent voting-rights violations rather than historical data and would also require federal review of certain categories of election-law changes nationwide.
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