Conservative adversaries of the Voting Rights Act have long tried to paint the law as an oppressive bureaucratic burden, a federal imposition on states that can’t be tolerated under the Constitution. That was their argument against the law in 1964, and it’s still their argument today as the Court prepares to consider Shelby County v. Holder.

Setting aside the irony of this argument—we fought a little thing called the Civil War at least in part over states’ rights and, shortly after the Union prevailed, ratified the 15th Amendment to explicitly grant the federal government strong powers to prevent states from denying or abridging the right to vote on the basis of race —these opponents misrepresent what the Voting Rights Act really looks like in practice.   The simple reality is that the preclearance requirement of Section 5 of the Act is not a particularly significant burden for covered jurisdictions that do not seek to enact laws that deny or abridge the right of racial minorities to vote. 

Section 5 requires election officials in nine states, and some counties and townships in seven others, to submit changes to their voting policies either to a federal court or to the Justice Department for approval before putting them in place, including seemingly mundane but potentially significant issues like the closing of a polling place. How long does the preclearance process take in such cases? “Less than an hour to prepare and mail,” according to elections administrators who contributed to congressional testimony in 2006. And the costs? “Insignificant, except for redistricting submissions.” (As little as $100 for a routine submission, estimates longtime VRA litigator Gerry Hebert.) 

To most election administrators, preclearance is a manageable procedure that’s been well integrated into bureaucratic routine for decades. Administrators also recognize its tangible benefits: it gives them public credibility and enhances respect for voting rights, and helps them largely avoid citizen litigation, costly on both sides. That’s one reason Mississippi and other states signed an amici brief opposed to their counterparts in Shelby County, AL. It’s also why Senators and Representatives from covered districts spoke eloquently about the value of the process to their home states in 2006, when Congress reauthorized the Voting Rights Act by a bipartisan landslide.

Moreover, jurisdictions with a clean recent record on this front can “bail out” of preclearance altogether.  Section 5 is designed to apply to the areas that have longstanding, proven histories of racial discrimination in voting. While the formula for distinguishing covered from uncovered jurisdictions is under attack in Shelby County, this formula does not stand alone.   If a jurisdiction’s laws have been approved by the Justice Department without raising any red flags for a period of ten years, then it can apply to be excluded from preclearance altogether. And the use of the bailout process has recently spiked. 19 jurisdictions have bailed out in three years since the 2009 NAMUDNO v. Holder case. [Addendum: These 19 bailout actions have led to a total of 127 jurisdictions successfully bailing out since NAMUDNO, if one includes smaller sub-jurisdictions–i.e. towns—in addition to larger jurisdictions–i.e. counties. More information is available at justice.gov.]  As Hebert, who has represented many governments in seeking a bailout, recently observed, “not a single jurisdiction seeking a bailout has been turned down, and . . . States and political subdivisions are pursuing bailouts with ease in greater numbers than ever before.”

New Hampshire is currently poised to be the first state to exit preclearance through the bailout process since the 1980s.   In a move that suggests that the opposition to the Voting Rights Act is not really driven by concern over “states’ rights,” the conservative Center for Individual Rights has actually filed a motion to intervene against New Hampshire’s attempt to bail out.  Apparently it would damage their campaign to prove that Section 5 tramples on states’ rights if a state, in fact, successfully asserted its rights.

This vital fact is missing from the debate over Section 5 of the Voting Rights Act: through both the preclearance and the bailout processes, the Justice Department can very much limit the burdens for covered jurisdictions that are not discriminating.  These burdens are modest, and fully justified by the need to ensure that states with a long history of voting discrimination live up to our Constitution’s promise of a multi-racial democracy.

Photo Credit: Christian Science Monitor.