The Voting Rights Act and State Behavior: How Section 5 Coverage has Shaped State and Local Policy

Abstract

From the passage of the Voting Rights Act (VRA) in 1965 until the summer of 2013, several states were required to submit all electoral policies for preclearance, usually received by the Attorney General. This practice was codified by Section 5 of the VRA and targeted states and localities that had a history of discriminatory and restrictive electoral policies directed at limiting the influence of language and racial minorities. After the Supreme Court’s 2013 decision in Shelby County v. Holder, some formerly covered jurisdictions responded to their newfound freedom from preclearance by implementing restrictive policies. The controversial Court decision and subsequent spate of potentially discriminatory election policies have raised questions about the past and future efficacy of the VRA and Section 5. Guided by the debate over the relevance of the VRA, this Paper examines the policy history of ten states formerly covered by Section 5, as well as recent developments from similar states that were never covered, Documenting each policy objected to by the Attorney General provides a framework to examine which states were the biggest offenders and what methods they employed in their attempts to limit minority voting influence. Using the previous half-century of data as a basis for understanding contemporary policy developments, this Paper finds that preclearance remains an important tool in combatting restrictive policies, at least in some specific states and localities. Moreover, this historical analysis paired with an overview of recent state behavior informs current and future discussions about a revised version of preclearance coverage.