Executive Summary

Today the U.S. Supreme Court heard oral arguments in Shelby County v. Holder, and considered whether a provision of the Voting Rights Act of 1965 (the “VRA”), which requires certain jurisdictions to obtain prior approval for changes in election laws, is unconstitutional. Most observers expect the Supreme Court to invalidate the provision in June. Such a decision would likely force Congress to revisit the issue in greater detail before any state or local jurisdictions can be required to seek prior approval of their election laws.

Background on the Preclearance Requirement

Section 5 of the VRA (commonly referred to as the “Preclearance Requirement”) requires certain jurisdictions to obtain prior approval from the U.S. Department of Justice or the court in Washington, D.C. before enforcing any changes in election laws.

The VRA contains a formula for determining which jurisdictions are subject to the Preclearance Requirement. Under the current formula, all or portions of 16 states are subject to the Preclearance Requirement: Alabama, Alaska, Arizona, California, Florida, Georgia, Louisiana, Michigan, Mississippi, New Hampshire, New York, North Carolina, South Carolina, South Dakota, Texas, and Virginia.