What Did VRA Preclearance Actually Do?: The Gap Between Perception and Reality

By Rick Pildes & Dan Tokaji

A widespread perception exists that, in the years before the Court’s decision in Shelby County v. Holder, the Section 5 preclearance regime was a powerful tool in protecting access to the ballot box for minority voters.  Indeed, Section 5 is widely thought to have been overwhelmingly about protecting access in the covered areas:  that is part of it symbolic meaning.  On this view, Section 5 was a bulwark against laws like the one just signed by North Carolina’s governor – which makes voting more difficult for eligible voters by cutting the early voting period, eliminating same-day registration, and other measures.

But the reality is that Section 5 was rarely used in this way, at least in its last three decades.  Section 5 did not, primarily, function to protect access to the ballot box.  Instead, the overwhelming uses of Section 5 were to ensure more majority-majority election districts or to stop at-large election systems and other practices believed to weaken minority voting strength.  Some of these uses, especially the compelled creation of majority-minority election districts, are more controversial (even among conventional “liberals”) than are robust protections for access to the ballot box.  Yet in practice, Section 5 was used primarily for redistricting and other matters of vote dilution rather than protecting the right of eligible citizens to cast a vote.

A better-informed understanding of what the Section 4/5 preclearance regime did and did not do before Shelby County is needed to shed appropriate light on possible directions for policy changes in the wake of the Court’s decision.  In addition, the assumption that Section 5 would have been an effective tool to block emerging barriers to political participation, if not for Shelby County, is more complicated than often recognized.  To fully protect access to the ballot box for eligible voters, policies structured differently than Section 5 would have been necessary in any event.

At the end of this post is a table with the full data on Section 5 submissions and objections from 2000 to 2012.  These data are drawn from the Department of Justice’s website and a very useful search tool on the Lawyers’ Committee for Civil Rights’ website.  2000 is an especially appropriate starting point, because it coincides with the period during which issues of election administration became a prominent public concern, starting with Florida’s contested presidential election and Bush v. Gore.  If barriers to participation were a common subject of DOJ attention and concern, we would expect to see a lot of that concern manifested in this period. But in fact, we don’t.

Briefly summarized, the data show this: Redistricting changes generated vastly more objections than any other category – more than half of all objections DOJ made since 2000 (39 of 76).  That number was almost twice as high as the next-highest category, Method of Election (20), which includes various forms of vote dilution (such at-large elections and the number of seats on a multi-member body), but not vote denial.

Similarly, redistricting and Method of Election changes were also the top two uses of Section 5 when it comes to the percentage of submissions yielding an objection.  DOJ objected to 0.94% of Redistricting changes.  These changes were more than ten times as likely to generate an objection as Voter Registration/Qualifications changes, which yielded just five objections from 2000 to 2012.  Redistricting changes were more than 350 times as likely to generate an objection as Polling Place/Absentee & Early Voting Locations changes (just one objection).  The “Miscellaneous” category, which includes “Absentee voting,” “Ballot format,” “Election administration” and “Voter assistance procedures,” did not yield any objections.

In sum, rules governing access to the ballot box and election administration were rarely the subjects of Section 5 objections from 2000 on (the overall pattern is the same during the Clinton years).   But we were also concerned that formal objections do not tell the whole story about the effectiveness of preclearance.   While DOJ objected to a very small percentage of the changes it received, it more frequently requested more information from the jurisdiction seeking preclearance.  Sometimes, these requests for more information (MIRs) resulted in alterations to or withdrawal of the proposed voting changes.  So what does adding these MIRs into the picture show about how Section 5 was actually used?  Does it change anything from what the record of formal objections shows?

The answer is no.  Luis Ricardo Fraga and Maria Lizet Ocampo have published the most extensive study of more information requests (MIRs).  They show that the pattern of MIRs is essentially the same as that with formal objections:  Redistricting and Method of Election were the two largest sources of MIRs. Between 1982 and 2005, DOJ requested more information for about 3.5% of all voting changes. For voting changes categorized as Redistricting, however, the DOJ issued an MIR 14.2% of the time (to 1,234 out of a total of 8,694 submissions).  For “Method of Election” changes, DOJ issued an MIR 18.5% of the time (on 2,728 of 14,780 submissions).  On the other hand, for the categories associated with vote denial (including Voter Registration and Polling Place changes), DOJ was much less likely to request more information.

These data demonstrate the disjunction between perception and reality when it comes to what the preclearance regime was actually doing before Shelby County.  While new barriers to participation have been a prominent subject of public, legislative, and scholarly concern – and properly so – Section 5 in practice had long been about redistricting, at-large elections, and other forms of vote dilution, not about protecting against vote denial.   

Just very recently, Section 5 had begun to play a role – for the first time in decades – in addressing access-to-the-ballot box issues.  This is partly because of a wave of new state laws that impose additional conditions on voting or that cut back recent extensions in ease of access.  In the last year before Shelby County, three important and highly publicized cases used Section 5 in this way.  Federal courts used Section 5 to stop cutbacks to early voting in the five (of 67) covered counties in Florida; to induce changes that softened South Carolina’s voter ID law; and to block Texas’ voter ID law that permitted only exceptionally limited forms of identification to count.  These decisions fuel the perception that Section 5 was a major barrier to new laws that make access to the ballot box for minority voters more difficult.

But keep in mind, because there has been so little use of Section 5 to address these “vote denial” claims, we also have minimal information – and virtually none from the Supreme Court – on how effective Section 5 would have been in stopping such restrictions in the long run.  The Supreme Court did not pass on the merits of any of these three lower-court decisions.

Section 5 was never an all-purpose protection for access to the ballot box: only voting changes that had a distinctly disproportionate impact on minority voters could be blocked.  That left open two huge questions, for this Court, that would have arisen even without Shelby County.  How much of a differential impact on minority voters would the Court have required to block the change under Section 5?  And even if there were large differences in impact along racial lines, would this Court have found it constitutional for federal law to block state changes in voting merely because of disparate racial impacts, absent a strong basis in evidence for concluding that the state changes actually had a discriminatory purpose?  Put more concretely, would this Court have upheld Section 5’s use to block cut-backs in early voting in parts of Florida, when similar cutbacks were fine in Ohio (and, indeed, in other parts of Florida)?  Those who view Section 5 as a (now defunct) savior from all newly emerging  barriers to access implicitly make optimistic assumptions not necessarily warranted about what the Court would have done in such cases.

For all these reasons, Section 5’s bark was bigger than its perceived bite when it came to protecting access to the vote.  It might have deterred covered jurisdictions from adopting new restrictions on access, though it is impossible to know what size any such effect might have been. What’s clear is that Section 5  was rarely used to ask for more information about such changes or to stop them  once enacted.

In the long run, other tools are likely to be more effective at protecting access to the ballot box.  Some requiring legislation, some are possible through executive action, and some involve the courts. The possibilities include, to name just a few: federal efforts to improve voting access through measures such as more modern registration systems (using either the Elections Clause or the Spending Clause); federal provision of valid identification to eligible voters who might otherwise lack such identification; greater disclosure of information about the performance of voting systems in various states; federal legislation that would establish appropriate, reasonable identification requirements for federal elections and pre-empt more draconian state laws; use of state constitutional right-to-vote provisions in litigation.  Voting rights advocates should focus on these types of reforms – about which we, and surely others, will have more to say in the future.

Section 5 Submissions and Objections, 2000-2012. 

Type

Submissions

Objections

Percent

Redistricting/Reapportionment

4,132

39

0.94%

Annexation

46,151

3

0.01%

Polling Place/Absentee   & Early Voting Locations

37,995

1

0.00%

Precinct

19,182

1

0.01%

Reregistration/Purge

41

0

0.00%

Incorporation/Dissolution

2,103

0

0.00%

Bilingual Procedures

1,934

3

0.16%

Method of Election

7,653

20

0.26%

Form of Government   (Elective/Appointed)

519

0

0.00%

Consolidation/Division of Political Units

967

0

0.00%

Special Election

17,330

2

0.01%

Voting Methods

7,395

0

0.00%

Candidate Qualifications

2,205

2

0.09%

Voter Registration Procedures/Voter Qualifications

5,400

5

0.09%

Miscellaneous

55,040

0

0.00%

Total

208,047

76

0.04%

 

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