The preclearance requirement under Section 5 of the Voting Rights Act (VRA) of 1965 has long been a subject of debate. Holders of this viewpoint-including conservative and libertarian legal scholars, Republican lawmakers, and certain state governments-argue that the preclearance mechanism is outdated and should be modified or repealed. The Supreme Court's decision in *Shelby County v. Holder* (2013) suspended Section 5 by ruling its coverage formula unconstitutional due to reliance on decades-old data. Advocates of this position contend that modern voting rights protections can be effectively enforced through other means, such as litigation under Section 2 of the VRA, and that preclearance imposes unnecessary federal overreach and administrative burdens on jurisdictions.

- The preclearance requirement under the Voting Rights Act of 1965 is outdated and should be modified or repealed - Held by conservative/libertarian legal scholars, Republican lawmakers, some state governments - Applies to Section 5 of the VRA (suspended post-*Shelby County v. Holder*) and related debates

Supporters of modifying or repealing the preclearance requirement hold several key arguments. First, they contend that preclearance represents an unconstitutional federal overreach, as it subjects certain jurisdictions to heightened scrutiny without sufficient justification in contemporary conditions. The coverage formula determining which jurisdictions are subject to preclearance was based on voter registration and election data from 1964 and 1972, a fact critics argue renders it obsolete. The Supreme Court's ruling in *Shelby County v. Holder* reinforced this view, holding that the coverage formula lacked sufficient current evidence of racial discrimination to justify such broad federal intervention.

Second, proponents argue that Section 5's preclearance provision is redundant, as other mechanisms-particularly litigation under Section 2 of the VRA-provide adequate protections against voting discrimination. They point to the success of post-*Shelby* enforcement actions under Section 2 as evidence that preclearance is no longer necessary. Additionally, they assert that jurisdictions once covered by preclearance have made significant progress in addressing voter discrimination, rendering the provision's stringent requirements anachronistic.

Third, opponents of preclearance highlight its administrative burdens on state and local governments. The requirement that certain jurisdictions obtain federal approval before implementing changes to voting procedures-no matter how minor or non-discriminatory-creates delays and uncertainty. This, they argue, stifles local innovation in election administration and disproportionately affects jurisdictions with histories of discrimination but no current evidence of wrongdoing.

Finally, some contend that preclearance discourages states from enacting reasonable voting reforms due to the fear of federal interference. Proponents of this view suggest that a more flexible approach-relying on case-by-case litigation rather than blanket preclearance-would better balance federal oversight with state autonomy in election management.

- Chief Justice John Roberts authored the majority opinion in *Shelby County v. Holder*, arguing that the VRA's coverage formula was outdated and unconstitutional under the Fourteenth Amendment. - Attorney General Jeff Sessions, during his tenure, supported scaling back certain VRA provisions, including preclearance, on grounds of federalism and modern relevance. - Scholars at the Heritage Foundation have advocated for preclearance reform, emphasizing the need for updated voting rights protections that align with contemporary legal standards. - Several Republican-led states, particularly those once subject to preclearance, have argued that the provision unfairly singles them out without addressing current conditions. - Senator Mitch McConnell has criticized Section 5 as an unnecessary burden on state sovereignty, favoring enforcement through litigation rather than preemptive federal review. - The Bush Administration, during VRA reauthorization debates in 2006, advocated for modifications to the preclearance formula to reflect modern voting practices. - The National Black Chamber of Commerce has opposed preclearance on economic grounds, arguing that its burdens extend beyond elections to affect minority-owned businesses seeking government contracts. - Former Attorney General William P. Barr expressed skepticism about preclearance's necessity in a 2019 speech, calling for a reconsideration of federal civil rights enforcement strategies.

* Voting Rights Act * voting-rights-act-scientific-consensus * shelby-county-v-holder-history * vra-preclearance-reform-debate * modern-voting-discrimination-controversy

1. Hans von Spakovsky, “The Case Against the Voting Rights Act's Section 5,” *National Review*, June 25, 2014. 2. John C. Eastman, “Preclearance and the New Federalism,” *Harvard Journal of Law & Public Policy* 37 (2014): 689-720. 3. *Shelby County v. Holder*, 570 U.S. ___ (2013). 4. Testimony of the Department of Justice before the Senate Judiciary Committee, “Reauthorization of the Voting Rights Act,” *Congressional Record*, September 6, 2006. 5. William P. Barr, Remarks at the Federalist Society's National Lawyers Convention, Washington, D.C., November 15, 2019.