Also known as: preclearance requirements · preclearance · Section 5 preclearance
Written by attorneys · grounded in primary & secondary sources — see below
A statutory requirement that certain jurisdictions obtain federal approval before implementing changes to voting laws or procedures. The requirement shifts the burden to the jurisdiction to demonstrate that a proposed change will not have a discriminatory purpose or effect.
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Pavel Petrov, a state election official in a jurisdiction covered only by 1970s turnout data, proposes updating early voting sites. Federal authorities demand submission for approval under the coverage formula. The state sues, arguing that decades-old statistics no longer justify the selective burden on its sovereignty.
Phuong Pham, a covered jurisdiction's attorney general, seeks to reinstate a literacy test after the Voting Rights Act suspension. Federal authorities block the change through the preclearance process. The jurisdiction challenges the requirement as exceeding congressional power, but the Court sustains it as a valid remedy for past discrimination.
Priya Prasad, a state legislator, draws a new congressional district to satisfy federal preclearance demands under the Voting Rights Act. The plan creates a third majority-Black district even though the state cites no current evidence of intentional discrimination. Challengers argue the district was drawn solely to obtain approval rather than to remedy proven violations.
Piper Patel, a North Carolina voter, sues over a districting plan shaped by the Attorney General's preclearance demands. The plan creates majority-minority districts to overcome historical bloc voting. The Court examines whether the state had a strong basis in evidence for the race-based lines before seeking federal approval.
Preston Pratt, a member of Arizona's independent redistricting commission, draws legislative districts that comply with the Voting Rights Act preclearance requirement then in effect. The plan produces an 8.8 percent total deviation from population equality. Plaintiffs claim the deviation reflects partisan bias rather than legitimate preclearance needs.
Peter Park, a patient injured by a pacemaker, sues the manufacturer claiming state tort claims survive federal regulation. The manufacturer argues that FDA approval functions as a form of preclearance that displaces state requirements. The Court analyzes whether the federal scheme preempts the state claims without an express statutory command.
Covered jurisdictions must submit proposed changes to voting procedures to federal authorities for approval before the changes may take effect. The jurisdiction bears the burden of showing that the change lacks a discriminatory purpose or effect. This mechanism prevents new discriminatory devices from evading the Act's protections.
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The formula relied on decades-old data from the 1960s and 1970s without any updated justification for treating some states differently from others. The Court held that the Tenth Amendment and principles of equal sovereignty require extraordinary justification for such disparate treatment. Reliance on stale data failed to meet that standard under the Fifteenth Amendment enforcement power.
…Assembly a strong basis for believing that remedial action was warranted here: the Attorney General's imposition of the § 5 preclearance requirement on 40 North Carolina counties, and the Gingles District Court's findings of a long history of official racial discrimination in North Carolina's political system and of pervasive racial…
…conditions justifying that requirement have dramatically improved. We have also previously highlighted the concern that “the
…if the covered jurisdiction can demonstrate that it has not used such devices for discriminatory purposes. Section
…interest the General Assembly had in mind when drafting the current congressional plan was satisfying [the Justice Department's] preclearance requirements
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Any selective preclearance regime must rest on current evidence of discrimination rather than historical conditions alone. Congress may not freeze in place a disparate regulatory scheme once the original conditions have materially changed. The Fifteenth Amendment enforcement power does not authorize ongoing unequal treatment without contemporary factual support.
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States sometimes drew districts primarily to satisfy Justice Department preclearance demands rather than to remedy proven past discrimination. The Court requires a strong basis in evidence that remedial action is necessary before race can predominate in districting. Preclearance pressure alone does not supply that evidentiary foundation.
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