Proponents of the preclearance necessary viewpoint hold that Section 5 of the Voting Rights Act of 1965 - the provision requiring certain jurisdictions with a history of voting discrimination to obtain federal approval before changing their election laws - remains an essential and constitutionally justified tool for protecting minority voting rights. Advocates contend that the Supreme Court's 2013 decision in Shelby County v. Holder, which effectively disabled the preclearance mechanism by invalidating the coverage formula in Section 4(b), was both legally incorrect and practically catastrophic. This viewpoint is held by a broad coalition including civil rights organizations, many constitutional law scholars, Democratic legislators, and voting rights advocates.

Advocates argue that the history of voting rights enforcement in the covered jurisdictions - primarily Southern states - demonstrates a persistent and adaptive pattern of discrimination that ordinary litigation cannot adequately address. Before the VRA, states and localities routinely invented new discriminatory devices as fast as courts struck down old ones: when literacy tests were enjoined, jurisdictions moved to at-large elections; when those were challenged, they redrew district lines. Preclearance, in this view, was designed specifically to break this cycle by shifting the burden of proof to the jurisdiction seeking to change its laws, rather than requiring aggrieved voters to file a new lawsuit every time. The Department of Justice blocked or caused the withdrawal of thousands of discriminatory voting changes between 1965 and 2013, which advocates cite as direct evidence the mechanism was working.¹⁾

Scholars in this camp argue that Chief Justice Roberts's majority opinion in Shelby County applied an invented standard - “equal sovereignty of the states” - that has no firm grounding in the Constitution's text or in the Court's prior equal sovereignty jurisprudence, which had previously applied only to the terms of state admission to the Union.²⁾ They contend that Congress possesses broad remedial authority under Section 2 of the Fifteenth Amendment to determine what legislation is appropriate to enforce the amendment's guarantee, citing the Court's own precedent in Katzenbach v. Morgan (1966) and South Carolina v. Katzenbach (1966). On this reading, the Court in Shelby County substituted its own factual judgment for that of Congress, which had reauthorized the VRA in 2006 with a 98-0 Senate vote and a 390-33 House vote after compiling over 15,000 pages of legislative record documenting ongoing discrimination.³⁾)

Advocates point to the rapid proliferation of restrictive voting laws in formerly covered jurisdictions following the Shelby County decision as confirmation that the preclearance mechanism had been doing necessary work. Within hours of the ruling, Texas announced it would implement a previously blocked voter ID law; other states moved quickly to restore laws the DOJ had objected to or to enact new restrictions.⁴⁾ Proponents argue this pattern vindicates the original congressional judgment that some jurisdictions required prospective rather than reactive oversight.

This viewpoint does not concede that preclearance is in tension with federalism. Advocates argue that the Reconstruction Amendments affirmatively granted Congress enforcement authority precisely because state governments had demonstrated they could not be trusted to protect the constitutional rights of their own citizens without federal oversight. The Fifteenth Amendment, in this reading, altered the constitutional balance in exactly the way preclearance reflects. Federalism concerns, they hold, cannot override explicit constitutional guarantees of equal access to the ballot.

The preclearance mechanism was included in the original VRA at the insistence of Attorney General Nicholas Katzenbach and civil rights advocates who recognized that a purely litigation-based enforcement model had proven inadequate during the decade following Brown v. Board of Education. Preclearance was initially treated as an emergency, temporary measure and was subject to periodic reauthorization. The Supreme Court upheld it as constitutional in South Carolina v. Katzenbach (1966), with Chief Justice Warren writing that Congress had “exercised its authority under the Fifteenth Amendment in an inventive manner.”⁵⁾)

Preclearance was renewed in 1970, 1975, 1982, and 2006, with Congress each time compiling extensive records of continued discrimination in covered jurisdictions. The 2006 reauthorization, conducted under a Republican-controlled Congress, was the most thorough, producing a detailed legislative record that advocates of this viewpoint argue the Shelby County Court improperly discounted.

The Shelby County decision left Section 5 technically intact but inoperable by striking down the Section 4(b) coverage formula used to determine which jurisdictions were subject to it. Congress has not enacted a replacement formula, though the John R. Lewis Voting Rights Advancement Act - which would establish a new coverage formula - has passed the House multiple times and stalled in the Senate.⁶⁾)

John Lewis (1940-2020) - Georgia congressman and veteran of the Selma-to-Montgomery marches, Lewis was the most prominent legislative champion of VRA reauthorization and of restoration legislation following Shelby County. The post-Shelby restoration bill bears his name.

Ruth Bader Ginsburg (1933-2020) - In her dissent in Shelby County, Ginsburg wrote that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”⁷⁾)

Ari Berman - Journalist and author of Give Us the Ballot, the most widely read popular history of post-VRA voting rights enforcement, Berman has been a sustained advocate for preclearance restoration.

Laughlin McDonald (1940-2016) - Longtime director of the ACLU's Voting Rights Project and a leading litigator under the VRA, McDonald argued extensively for the constitutional validity and practical necessity of preclearance.

Kristen Clarke - President of the Lawyers' Committee for Civil Rights Under Law and later Assistant Attorney General for Civil Rights under the Biden administration, Clarke was a prominent advocate for preclearance restoration legislation.

Advocates disagree about whether a restored coverage formula should be targeted narrowly at jurisdictions with recent documented violations - as the John R. Lewis Act proposes - or applied more broadly, potentially including jurisdictions outside the South where voting discrimination has been documented. Some argue a broader formula is more defensible legally because it is less regionally targeted and thus harder to challenge on equal sovereignty grounds; others contend a broader formula would be politically harder to pass and practically harder to administer.

Some within this camp acknowledge that Section 2 litigation - which remains available after Shelby County - can address some discriminatory laws but argue it is categorically inadequate as a full substitute because it is slower, more expensive, and reactive rather than preventive. A smaller contingent holds that aggressive Section 2 enforcement, combined with bail-in provisions, can substantially replicate preclearance's protective effect without requiring a new congressional formula. Most preclearance advocates reject this as insufficient.

A smaller debate concerns whether any restored preclearance regime should route approvals through the DOJ, the federal courts, or some combination of both, given concerns about the politicization of DOJ enforcement across administrations.

• Voting Rights Act of 1965 - Main Topic
• Preclearance Unnecessary Viewpoint
• Section 2 Sufficient Viewpoint
• Voting Rights Act - History
• Voting Rights Act - Debate
• Shelby County v. Holder - Debate
• Voter ID Laws - Debate