Preclearance

Preclearance was a feature of Section 5 of the Voting Rights Act that required certain states and localities to obtain approval from the U.S. Department of Justice or a federal court in Washington before putting any change to voting rules into effect. The jurisdictions covered were determined by a formula in Section 4 based on a history of discrimination, such as the use of literacy tests and low turnout in 1960s-era elections. Nine states, mostly in the South, and parts of others were covered.

To win approval, a jurisdiction had to show the change did not have a discriminatory purpose or effect. The remedy was strong, since it reversed the usual presumption that laws are valid until challenged, and it blocked thousands of changes, from polling place relocations to new districts. The Supreme Court upheld it as a justified response to entrenched discrimination in 1966.

In Shelby County v. Holder (2013), the Court held 5-4 that the coverage formula was unconstitutional because it relied on decades-old data and treated states unequally, a federalism concern. Without a formula, preclearance has no effect. Congress has considered bills to restore it with a new formula. Supporters say it prevented discrimination before it took effect; opponents argue it was an extraordinary intrusion that was no longer necessary, and that the Section 2 lawsuits remain available.