The Fifty State Solution to Shelby County

A Constitutional Coverage Formula Under Shelby County

A Constitutional Coverage Formula

The commentators’ verdict is in: Section 5 of the Voting Rights Act is finished. Although the preclearance section is still good law, Chief Justice Roberts’s opinion struck down the “coverage formula,” Section 4, and so preclearance (Section 5) now lies dormant.

Chief Justice Roberts invited Congress to craft a more specific coverage formula, but many argue that there’s no way Congress can agree on which states should be covered, i.e., those with the highest likelihood of suppressing minority votes. So – the conventional wisdom goes – there’s no politically palatable way to fix Section 4 and re-activate Section 5.

But there is a potential solution: extend the coverage formula to all 50 states. In other words, make every jurisdiction preclear changes before they go into effect. Don’t just apply Section 5 of the VRA to the South; apply it to the entire country.

The fifty-state solution would satisfy Shelby County‘s legal standard, since the new coverage formula would no longer violate the “equal sovereignty” of individual states by treating them differently from each other. Every state would be treated the same.

Expanding Section 5 to the entire country would also be more politically palatable, since no Members of Congress would have to “figure out which states are racist and which ones aren’t.” Everyone’s covered.

The downside is the increased administrative cost of covering the entire country under the VRA. The Justice Department will need more attorneys to help with increased preclearance requests. But even this cost could be decreased over time by allowing states to “bailout” of Section 5 coverage if they’ve gone a certain number of elections without any violations.

The politically feasible way to fix the VRA isn’t to make it narrower; it’s to broaden coverage to all fifty states.

Photo Credit: Wikipedia

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14 Responses

  1. Howard Wasserman says:

    Wouldn’t the same majority come back and say the means and ends don’t mix, especially in a City of Boerne way? That absent a history of race discrimination in voting, Congress cannot subject states to preclearance.

  2. Chris Griffin says:

    Interesting question. As Gerard pointed out earlier today, the Court relied on a Katzenbach “rational in both practice and theory” standard when considering the coverage formula’s validity rather than adopting a City of Boerne “congruence and proportionality” test. Either way, I’m sure Aaron’s provocative response would be met with skepticism (to say the least) but today’s majority.

  3. Aaron Zelinsky says:

    I agree that an increase in coverage would not be welcomed with open arms (particularly because of the high burden Section 5 places on states), but I think the opinion does place significant emphases on equal sovereignty: “To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.”

    And if there were a realistic bailout mechanism, that would reduce the “bite” of a broader Section 5.

  4. SM says:

    Wouldn’t the Department of Justice’s Civil Rights Division and the D.C. District Court simply collapse under the weight of the additional work? As I understand it, pre-clearance requires pre-clearance of changes as small as moving polling locations. If every polling place change had to be approved by the DOJ or a three-judge court …

    I can’t see how this can possibly work.

  5. Aaron Zelinsky says:

    I agree that they will need more attorneys, but the truth is that (at least from my admittedly anecdotal understanding), the innocuous preclearances actually happen quite quickly, and the bulk of the time is taken up by litigation / negotiation over the more controversial changes. So I’m actually not sure it would be as insurmountable an administrative burden.

    As discussed above, you could combine this with a bailout provision to lessen the administrative impact over time. And if you used prior section 2 lawsuits, you could allow bailout to begin relatively quickly after passage.

    As for the D.D.C., there are very few cases that have ever gone to trial there (the voter ID and the TX redistricting are the only recent ones I can think of).

  6. PrometheeFeu says:

    Didn’t the Court say that the whole pre-clearance regime itself is an extraordinary step which could only be justified by extraordinary conditions? (i.e. the repeated discrimination by the jurisdiction in question) I doubt they would approve pre-clearance for everybody.

  7. Aaron Zelinsky says:

    Yes (although they focused more on Section 4 in the opinion). That’s why I think you need to pair it with a realistic bailout mechanism (see comment 3) to make it have some hope of working.

  8. Don in Phoenix says:

    The solution is simple. The new coverage formula: every jurisdiction (and only those jurisdictions) where a challenge to a voting practice or procedure under either Section 2 or Section 5 has been successful in the past ten years.

    If a jurisdiction has kept its nose clean, so to speak, it is no longer covered. If there is a violation, it results in automatic coverage for the next ten years – longer if it doesn’t learn its lesson.

    Simple, proportional, rationally related to the objective, and never has to be revisited, because it is self-updating.

  9. CC says:

    Z — I had this thought as well, though also was not sure about the practical workload considerations. But having lived in the north, south, east, and west, I can say that racism is sadly everywhere. Why should Ohio have a voter ID law when the feds were saying Texas should not?

  10. Aaron Zelinsky says:

    Don: would your formula include those occasions where DOJ has failed to preclear and the jurisdiction has backed down, or only those that have proceeded through to a final decision on the merits by a Court?

    CC: Yes, the workload considerations are significant (from 9 states to 50), but again, I think the bulk of the work done by DOJ concerns more problematic changes. Most minor changes are easily and quickly approved (at least in my admittedly highly anecdotal experience).

  11. Eli Poupko says:

    I think this is a great idea. And while they’re at it, Congress should use its recently affirmed power over federal elections to set some more of the basic minimum procedures for election administration. This would help streamline the clearance process.

  12. JK says:

    The problem with tying bailout to voting rights cases is it incentivizes lousy litigation. File enough marginal VRA lawsuits over any and every legislative or executive decision made by the state and you’re bound to win one sooner or later. Then presto…bailout is precluded for another ten years. Certainly…the premise of extending Section 5 to all states is amusing. Despite the high profile VRA litigation in WI, PA, OH, FL and elsewhere, I never saw any commentary about how those states ought to have a VRA preclearance requirement (either by asking Congress to add them to VRA 4, or perhaps a VRA 3 “bail in”). Why not? Why weren’t the local politicians (and the organizations pursuing the litigation) talking about the wonderful benefits that Section 5 would provide to their constituents (such as…precluding or at least delaying the very litigation they were pursuing!)? They certainly talked enough about how its continued existence was SO CRITICAL that the world would end if it went away in the 18% of the US where it applied. Even now, the SCOTUS ruling does not prevent states from voluntarily “bailing in” to ensure that the “benefits” of Section 5 flow to their minority population. Why isn’t that happening? If Section 5 is so wonderful, why aren’t ALL STATES volunteering for coverage? (I’d like to see someone ask Jerry Brown why he’s not maximizing the opportunity to protect the voting rights of minority Californians. That should be an interesing answer…) The hypocrisy of the “its good for thee, but not for me” dogma was the downfall. Congress collected thousands of pages of data in 2006 so that they could analyze it and derive a formula that, in the end, had exactly zero changes in coverage. That’s the kind of nonsense that helped to undermine Section 5, and ultimately render it useless. At least Verilli was honest enough to admit that it was simply “reverse engineering”.

  13. Douglas Levene says:


    Why aren’t Section 3 “bail-ins” sufficient for whatever persistent discrimination still exists? See generally Note, 119 Yale L. J. 1992 (2010). The DOJ could go start by going after jurisdictions where whites vote in much higher percentages than blacks, such as Massachusetts. While the DOJ would have to prove intentional discrimination in a federal court in order to invoke Section 3, that shouldn’t be a problem if discrimination is as widespread as the proponents of pre-clearance seem to think.

  14. Aaron Zelinsky says:


    The section 3 bail-in is an interesting route. Supporters of Section 5 would answer that proving intentional discrimination is difficult, and that’s why preclearance focuses on discriminatory effect (thus Travis’s excellent note proposes amending Section 3 to meet an effects test). Proving intentional discrimination is much more difficult, even if there are clear discriminatory effects.