President Lyndon B. Johnson presents one of the pens used to sign the Voting Rights Act of 1965 to James Farmer, director of the Congress of Racial Equality on Aug. 6, 1965. The Voting Rights Act was unlike any other law in the way that it singled out for pre-emptive enforcement specific places deemed to have a history of discrimination.
Many who say the preclearance provision is no longer needed point out that there are other laws in place that prohibit voting discrimination. But civil rights advocates say there are key differences between even the permanent parts of the Voting Rights Act and Section 5, the only statute that requires some jurisdictions to justify new election laws before they take effect.
When a three-judge panel in Texas rejected a 2011 redistricting plan, for instance, it said that “the parties have provided more evidence of discriminatory intent than we have space, or need, to address here.” Individual plaintiffs could have challenged the plan using a different part of the Voting Rights Act, but the case might have taken years and perhaps two congressional elections.
The Supreme Court, in its first decision upholding the constitutionality of Section 5 in 1966, called the preclearance plan an “inventive” solution.
“Congress had found that case-by-case litigation was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits,” Chief Justice Earl Warren wrote at the time. “The question remains, of course, whether the specific remedies prescribed in the Act were an appropriate means of combatting the evil.”
In 1966, the justices decided 8-1 that they were. A new court will decide later this term whether it still agrees.
Editor’s note: This story first appeared in CQ Weekly.