If It’s Broke, Fix It: Improving Voting Rights Act Preclearance

Daniel P. Tokaji, If It’s Broke, Fix It: Improving Voting Rights Act Preclearance, 49 Howard L.J. 785 (2006).

Abstract:  In the debate over whether to reauthorize key provisions of the Voting Rights Act of 1965 that expire in 2007, there has been increasing attention to the risk of partisan manipulation in the Justice Department’s exercise of its preclearance power. Under Section 5 of the Voting Rights Act, covered jurisdictions must obtain preclearance of election changes from either the U.S. Department of Justice or the U.S. District Court in Washington. Historically, preclearance has served a critical role in protecting racial minorities’ access to the vote and in creating districts from which they may elect candidates of their choice. Recent events, however, have called into question whether the Justice Department can be trusted to exercise its Section 5 preclearance power evenhandedly. Its decisions to preclear Texas’ 2003 re-redistricting plan and Georgia’s 2005 voter identification law have drawn especially vigorous criticism. In both cases, the Justice Department granted preclearance against the recommendation of career staff, who warned that the proposed changes would have a retrogressive effect on African American and Latino voters in violation of Section 5.

This article addresses the risk of partisan manipulation in the Justice Department’s exercise of its Section 5 preclearance power and recommends changes to the preclearance process that would reduce this risk. After tracing the origins and history of Section 5, the article assesses controversies over the Department’s exercise of its preclearance power in the 1990s and 2000s. It concludes that there is a substantial risk of the Justice Department using its discretion to advance the partisan ends of the party in control of the White House, rather than to protect minority voting rights.

The article then considers three possible changes to the preclearance process: (1) creating a private right of action under Section 5 for voters who disagree with the Justice Department’s decision to grant preclearance; (2) removing preclearance authority from the Justice Department entirely, and placing it in the hands of a bipartisan or nonpartisan agency; and (3) replacing the administrative preclearance process with a negotiation process between community leaders and state or local election authorities. The article suggests a cocktail approach that combines elements of each. It recommends, however, that any changes to the preclearance process be limited to state-level changes. It also recommends that any amendments to the preclearance process not become effective until the year after the next presidential election, so that Congress considers possible changes behind a veil of ignorance as to which party will be in control of the executive branch.

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