Election Law Blog
The Justice Dept. has established a non-exhaustive list of changes that must be pre-cleared; it includes changes to:
Voter eligibility requirements
Voting precinct boundaries
Polling place locations
The U.S. Supreme Court gave the preclearance requirement broad application to include changes that may seem minor or ministerial in nature. The requirement also applies to a wide pool of state and local officials that have the authority to implement changes in voting practices, such as legislative bodies (county councils, commissions), executives (mayors), and local officials (county registrars and clerks).
How Many Changes are Typically Submitted for Preclearance?
The Voting Section of the Civil Rights Division typically reviews between 15,000 and 24,000 covered changes each year. In the first two years or so following the decennial census, redistricting changes account for the bulk of preclearance activity. The administrative process provides for a 60-day window for the Justice Dept. to respond to submitted applications for preclearance, although there are provisions allowing for extended time if necessary. The Dept. regularly updates its redistricting-related preclearance activity.
Preclearance refers to the administrative procedure required by section 5 of the Voting Rights Act. States and local jurisdictions covered under the Act must submit all changes affecting voting and elections for preapproval by the U.S. Department of Justice’s Civil Rights Division or the U.S. District Court for the District of Columbia. Historically, the Justice Dept. has handled the vast majority of preclearance requests under its administrative process.
Types of Changes that Must be Precleared
While there is no all-inclusive list of changes that must be precleared, the text of the Voting Rights Act prohibits:
"Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color"
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What are the Standards to Obtain Preclearance?
In determining whether a proposed voting change has a discriminatory purpose or effect, the Jutsice Dept. must evaluate the totality of circumstances surrounding the change. Legal precedent interpreting Section 5 has established a “retrogression” test, which asks the question whether minorities are worse off under the proposed change. If the answer were yes, the change would not be precleared. Changes that maintain the status quo would receive preclearance.
The administrative procedures for evaluating covered changes include a determination as to whether there is a “reasonable and legitimate” justification for the change and whether the jurisdiction followed objective guidelines and procedure when adopting the change.