The Supreme Court is poised to decide the fate of the Voting Rights Act’s preclearance process – one of our nation’s most powerful tools in combating discrimination. The Court should not second-guess Congress’s determination that voting discrimination remains concentrated in covered jurisdictions, and should uphold the law. Section 5 of the Voting Rights Act requires that covered jurisdictions (nine states plus parts of seven others) “preclear” their proposed election law changes with federal officials. Shelby County, Alabama, argues that preclearance is no longer warranted in covered jurisdictions because increases in minority voters and elected officials show discrimination has waned. Shelby County also contends that the voting discrimination that still does exist is no longer concentrated in covered jurisdictions, and that a coverage formula based on election data from 1964, 1968, and 1972 presidential elections is obsolete.
While our nation has made great progress in the last fifty years, in 2006 Congress reauthorized Section 5. In considering whether to reauthorize, Congress held twenty-one hearings, heard from over ninety witnesses, and assembled a fifteen-thousand-page record. Congress did not simply rely on the existing coverage formula, but instead was guided by the extensive evidentiary record that showed contemporary discrimination in voting remains concentrated in covered jurisdictions. As a result, Congress rationally decided not to add or subtract states from coverage.