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Chapter 4

Chapter 4

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Published by: Allison Hayward on Apr 22, 2010
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Chapter 4PRECLEARANCE UNDER SECTION 5 OF THE VOTINGRIGHTS ACT
A. I
NTRODUCTION
Until 1964, Southern state officials bent on denying blacks political power could exactenormous costs on opposition forces simply by requiring plaintiffs to litigate. A plaintiff wishingto put a stop to unconstitutionally discriminatory limits on the right to vote, for example, wouldhave to spend resources pursuing a court case. Even if successful in court, however, the statecould simply replace the challenged law with another discriminatory one, and by staying onestep ahead of plaintiffs the state could significantly delay compliance.In what was likely the most innovative aspect of the Voting Rights Act of 1965, Congresssought to correct this situation by “shift[ing] the advantage of time and inertia from the perpetrators of the evil to its victims.”
South Carolina v. Katzenbach
, 383 U.S. 301, 328 (1966)[p. XXX]. Instead of placing the burden on plaintiffs to demonstrate the unconstitutionality of election laws, § 5 of the VRA imposed upon certain governments the obligation to prove thelaws’ legality
before
those laws could go into effect. Under the preclearance provision, a state or  political subdivision wishing to change its election laws must submit its proposed change to theAttorney General of the United States or obtain a declaratory judgment from the United StatesDistrict Court for the District of Columbia. Under either route, preclearance will be granted andthe proposed change will be permitted to take effect only if the change has neither the purposenor the effect of “denying or abridging the right to vote on account of race or color.” 42 U.S.C.§ 1973c. (The Act now applies as well to laws denying or abridging the right to vote of languageminorities.
See
42 U.S.C. § 1973b(f)(2))The preclearance provision does not apply to all changes to laws that conceivably may affectvoting power. Rather, the preclearance obligation extends only to “voting qualification[s] or  prerequisite[s] to voting, or standard[s], practice[s], or procedure[s] with respect to voting.” 42U.S.C. § 1973c. Although the Supreme Court has recognized that this phrase implies somecategory of laws that need not be precleared, the Court has given it a broad interpretation,extending its coverage to such matters as the hours and locations of polling places, the drawingof district lines, whether certain government offices should be elective, and limitations on ballotaccess.
See Allen v. State Board of Elections
, 393 U.S. 544 (1969) [p. XXX].The preclearance provision is limited also in that it does not apply to the entire country. Itsscope is restricted to “covered jurisdictions,” which are identified in § 4(b) of the VRA, 42U.S.C. § 1973b(b), as those states or political subdivisions that used “tests or devicesindetermining voter eligibility and in which fewer than 50% of the voting-age population wereregistered or voted in the presidential elections of 1964, 1968, or 1972. The Act further defined a“test or device” as “any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2)demonstrate any educational achievement or his knowledge of any particular subject, (3) possessgood moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.” 42 U.S.C. § 1973b(c).As the Supreme Court has interpreted § 5, preclearance guards against “retrogression”—laws1
 
that reduce the political power of minority groups as compared to the power they held before the proposed change.
See Beer v. United States
, 425 U.S. 130 (1976) [p. XXX]. Preclearance doesnot demand that states improve the lot of minorities, or even that minorities be given the power to which they are entitled by § 2 of the VRA, but simply that the proposed change not make thesituation worse. If, however, the
 purpose
of a proposed change (as distinguished from its effect)is to give minorities less political power than that to which they are entitled, preclearance should be denied.
See
42 U.S.C. § 1973c(c).
B. V
OTING
S
TANDARDS
, P
RACTICES
,
AND
P
ROCEDURES
Much as critics have complained that § 5 makes states subservient to the nationalgovernment, the preclearance procedure applies to only a subset of laws passed or administered by covered jurisdictions. Specifically, preclearance is required whenever a covered jurisdiction“shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42 U.S.C. § 1973c. There is little controversy as tothe meaning of “voting qualification or prerequisite to voting,” but the remaining statutorylanguage has been the subject of important litigation.Disputes concerning the meaning of “standard, practice, or procedure with respect to voting”confront two competing concerns. On the one hand, all manner of state and local laws candiminish the significance of the right to vote without directly stopping any person from casting a ballot. The Court has reasoned that the purposes of the Voting Rights Act would be undermined by an interpretation that permitted states to avoid its strictures through clever devices thatformally did not involve voting. On the other hand, however, Congress did not intend to require
every
state and local law to be precleared. Requiring changes “with respect to voting,” in other words, implied a desire to exempt some category of changes in laws not respecting voting.Exactly which laws comprise that category, however, has long been a matter of dispute, as thefollowing cases attest.
ALLEN v. STATE BOARD OF ELECTIONS
Supreme Court of the United States393 U.S. 544, 89 S. Ct. 817, 22 L. Ed. 2d 1 (1969)
M
. C
HIEF
J
USTICE
W
ARREN
delivered the opinion of the Court [in which M
. J
USTICE
B
RENNAN
,M
. J
USTICE
S
TEWART
, M
. J
USTICE
W
HITE
, and M
. J
USTICE
F
ORTAS
joined, and in which M
. J
USTICE
 D
OUGLAS
and M
. J
USTICE
M
ARSHALL
joined in relevant part]. * * *Under § 5 [of the Voting Rights Act of 1965], if a State covered by the Act passes any“voting qualification or prerequisite to voting, or standard, practice, or procedure with respect tovoting different from that in force or effect on November 1, 1964,” no person can be deprived of his right to vote “for failure to comply with” the new enactment “unless and until” the Stateseeks and receives a declaratory judgment in the United States District Court for the District of Columbia that the new enactment “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.”However, § 5 does not necessitate that a covered State obtain a declaratory judgment action before it can enforce any change in its election laws. It provides that a State may enforce a newenactment if the State submits the new provision to the Attorney General of the United Statesand, within 60 days of the submission, the Attorney General does not formally object to the newstatute or regulation. The Attorney General does not act as a court in approving or disapproving2
 
the state legislation. If the Attorney General objects to the new enactment, the State may stillenforce the legislation upon securing a declaratory judgment in the District Court for the Districtof Columbia. Also, the State is not required to first submit the new enactment to the AttorneyGeneral as it may go directly to the District Court for the District of Columbia. The provision for submission to the Attorney General merely gives the covered State a rapid method of rendering anew state election law enforceable. Once the State has successfully complied with the § 5approval requirements, private parties may enjoin the enforcement of the new enactment only intraditional suits attacking its constitutionality; there is no further remedy provided by § 5.In these four cases, the States have passed new laws or issued new regulations. The centralissue is whether these provisions fall within the prohibition of § 5 that prevents the enforcementof “any voting qualification or prerequisite to voting, or standard, practice, or procedure withrespect to voting” unless the State first complies with one of the section’s approval procedures. No. 25,
 Fairley
v.
 Patterson
, involves a 1966 amendment to § 2870 of the Mississippi Codeof 1942. The amendment provides that the board of supervisors of each county may adopt anorder providing that board members be elected at large by all qualified electors of the county.* * * No. 26,
 Bunton
v.
 Patterson
, concerns a 1966 amendment to § 6271-08 of the MississippiCode.
 
The amendment provides that in 11 specified counties, the county superintendent of education shall be appointed by the board of education. Before the enactment of this amendment,all these counties had the option of electing or appointing the superintendent. * * * No. 36,
Whitley
v.
Williams
, involves a 1966 amendment to § 3260 of the Mississippi Code,which changed the requirements for independent candidates running in general elections. Theamendment makes four revisions: (1) it establishes a new rule that no person who has voted in a primary election may thereafter be placed on the ballot as an independent candidate in thegeneral election; (2) the time for filing a petition as an independent candidate is changed to 60days before the primary election from the previous 40 days before the general election; (3) thenumber of signatures of qualified electors needed for the independent qualifying petition isincreased substantially; and (4) a new provision is added that each qualified elector who signsthe independent qualifying petition must personally sign the petition and must include his polling precinct and county. * * *In all three of these cases, the three-judge District Court ruled that the amendments to theMississippi Code did not come within the purview of and are not covered by § 5, and dismissedthe complaints. Appellants brought direct appeals to this Court.
 
* * * No. 3,
 Allen
v.
State Board of Elections
, concerns a bulletin issued by the Virginia Board of Elections to all election judges. The bulletin was an attempt to modify the provisions of § 24-252of the Code of Virginia of 1950 which provides,
inter alia
, that “any voter [may] place on theofficial ballot the name of any person
in his own handwriting 
. . . .” The Virginia Code further  provides that voters with a physical incapacity may be assisted in preparing their ballots. For example, one who is blind may be aided in the preparation of his ballot by a person of his choice.Those unable to mark their ballots due to any other physical disability may be assisted by one of the election judges. However, no statutory provision is made for assistance to those who wish towrite in a name, but who are unable to do so because of illiteracy. When Virginia was broughtunder the coverage of the Voting Rights Act of 1965, Virginia election officials apparentlythought that the provision in § 24-252, requiring a voter to cast a write-in vote in the voter’s ownhandwriting was incompatible with the provisions of § 4(a) of the Act suspending theenforcement of any test or device as a prerequisite to voting. Therefore, the Board of Elections3

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