A New Coverage Scheme for Section 5 of the Voting Rights Act

Ever since the coverage scheme for Section 5, the preclearance section of the Voting Rights Act, was struck down by the U.S. Supreme Court in the 2013 case of Shelby County v. Holder, critics of that decision have sought to update the law with a new formula that might restore the protection of voting rights that preclearance afforded while satisfying the Court’s concerns. The most recent effort is embodied in a two-part coverage formula in the John Lewis Voting Rights Advancement Act, which was introduced in 2019 and only slightly amended in 2021 and 2023–24. This article argues that the Lewis Act amendments would be at once too broad and too narrow, and that they would likely fail to pass muster with the Supreme Court. The first part of the Act would cover too many jurisdictions that have never committed a voting rights violation. The second set of formulas, focusing on “known practices,” would fail to police many other current or future practices that might have discriminatory purposes or effects. Instead, I propose a much simpler formula that is firmly grounded in an examination of over 4000 voting rights cases, Section 5 objections, and settlements from 1957 through the present. A scheme based on the percentage of the citizen voting-age population of African Americans, Latinos, Asian Americans, or Native Americans in each county or state would capture 74% of the number of successful voting discrimination actions since 1957. If precisely tailored, it would do so while releasing from coverage 40% of the counties covered under the pre-Shelby County standard, unless they committed violations in the future. This simple formula, firmly grounded in the historical record, will simultaneously meet the demands of the Supreme Court and protect against a changing pattern of discriminatory laws in a demographically evolving America.