A widespread perception exists that, in the years before the Court’s decision in Shelby County v. Holder, the Section 5 preclearance regime was a powerful tool in protecting access to the ballot box for minority voters. Indeed, Section 5 is widely thought to have been overwhelmingly about protecting access in the covered areas: that is part of it symbolic meaning. On this view, Section 5 was a bulwark against laws like the one just signed by North Carolina’s governor – which makes voting more difficult for eligible voters by cutting the early voting period, eliminating same-day registration, and other measures. But the reality is that Section 5 was rarely used in this way, at least in its last three decades. Section 5 did not, primarily, function to protect access to the ballot box. Instead, the overwhelming uses of Section 5 were to ensure more majority-majority election districts or to stop at-large election systems and other practices believed to weaken minority voting strength. Some of these uses, especially the compelled creation of majority-minority election districts, are more controversial (even among conventional “liberals”) than are robust protections for access to the ballot box. Yet in practice, Section 5 was used primarily for redistricting and other matters of vote dilution rather than protecting the right of eligible citizens to cast a vote.
A better-informed understanding of what the Section 4/5 preclearance regime did and did not do before Shelby County is needed to shed appropriate light on possible directions for policy changes in the wake of the Court’s decision. In addition, the assumption that Section 5 would have been an effective tool to block emerging barriers to political participation, if not for Shelby County, is more complicated than often recognized. To fully protect access to the ballot box for eligible voters, policies structured differently than Section 5 would have been necessary in any event.
At the end of this post is a table with the full data on Section 5 submissions and objections from 2000 to 2012. These data are drawn from the Department of Justice’s website and a very useful search tool on the Lawyers’ Committee for Civil Rights’ website. 2000 is an especially appropriate starting point, because it coincides with the period during which issues of election administration became a prominent public concern, starting with Florida’s contested presidential election and Bush v. Gore. If barriers to participation were a common subject of DOJ attention and concern, we would expect to see a lot of that concern manifested in this period. But in fact, we don’t.
Briefly summarized, the data show this: Redistricting changes generated vastly more objections than any other category – more than half of all objections DOJ made since 2000 (39 of 76). That number was almost twice as high as the next-highest category, Method of Election (20), which includes various forms of vote dilution (such at-large elections and the number of seats on a multi-member body), but not vote denial.