Section 5 of the Voting Rights Act: Preclearance, Coverage, and Today

Section 5 of the Voting Rights Act required certain state and local governments to get federal approval before changing any voting rule, a process called preclearance. The statute still exists at 52 U.S.C. § 10304, but it has had almost no practical effect since the Supreme Court’s 2013 decision in Shelby County v. Holder struck down the formula that identified which jurisdictions had to comply. Today, no state or locality must preclear voting changes unless a federal court has separately ordered it to.¹

What Section 5 Required

Section 5 worked as a gate. A covered jurisdiction could not put a new voting rule into effect until a federal authority confirmed the change would not harm minority voters. The jurisdiction had to prove the change was clean. The federal government did not have to prove it was dirty. That reversed the usual dynamic in American law, where the government carries the burden when it wants to block a policy.¹

The statute reached any change to a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” that differed from what was in place on the applicable benchmark date.² Read literally, that phrase covered almost anything an election office might do differently.

Which Places Had to Comply

Section 5 never applied to every state. Section 4(b) of the Act contained a two-part formula that flagged jurisdictions with the worst records on voting discrimination. The first part asked whether the state or local government used a “test or device” as a condition for registering, typically a literacy test or a similar screening tool. The second asked whether fewer than 50 percent of voting-age residents were registered or voted in a specific presidential election.³

Congress updated the benchmark dates in 1970 and 1975, and a jurisdiction that tripped the formula at any of the three benchmarks became covered. The initial round pulled in Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia in their entirety, along with specific counties in Arizona, Hawaii, Idaho, and North Carolina. Later expansions added parts of New York, California, and other states. At its peak, Section 5 covered all or part of 16 states.⁴

What Counted as a Voting Change

Courts and the Justice Department interpreted Section 5 broadly. A change did not have to look discriminatory to require preclearance. The question was simply whether the jurisdiction had changed anything about how voting worked. Common examples included:

Redrawing the boundaries of legislative or congressional districts.
Moving a polling place from one building to another, even within the same neighborhood.
Introducing or changing the documents required to cast a ballot.
Annexing new territory into a city or town in ways that changed the racial composition of the electorate.
Shifting the dates of primaries or runoff elections.
Adding new registration requirements or changing registration deadlines.

How a Jurisdiction Got a Change Approved

A covered jurisdiction had two paths. Most chose the administrative one because it was faster and cheaper.

Administrative Review by the Attorney General

The jurisdiction submitted its proposed change to the Civil Rights Division of the Department of Justice, including demographic data, maps, and a written comparison to the existing practice. The Attorney General then had 60 days from receipt of a complete submission to review it. Silence meant approval; a written objection blocked enforcement.⁵

Judicial Declaratory Judgment

The alternative was filing suit in the U.S. District Court for the District of Columbia and asking a three-judge panel to declare that the change had neither a discriminatory purpose nor a discriminatory effect. This route was more expensive but offered a full evidentiary record.⁶ On either path, the jurisdiction carried the burden of proof.

The Standard Used to Judge Changes

The legal test was called the retrogression standard, established by the Supreme Court in Beer v. United States in 1976. The core question was whether the proposed change would leave minority voters worse off than they were under the existing system.⁷

The statute itself prohibits any voting change 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 . . . to elect their preferred candidates of choice.”² The inquiry ran on two prongs. Purpose looked at whether officials intended to disadvantage minority voters. Effect looked at real-world impact regardless of intent. A change could fail on either prong alone.

Why Section 5 Stopped Working

In 2013, the Supreme Court effectively shut preclearance down in a 5–4 decision. The majority in Shelby County v. Holder held that the Section 4(b) coverage formula was unconstitutional because it relied on data from the 1960s and 1970s that no longer reflected current conditions. The Court pointed to a “fundamental principle of equal sovereignty” among the states and reasoned that Congress could not keep imposing special burdens on certain states based on decades-old evidence without updating its justification.⁸

The Court did not strike down Section 5 itself. Chief Justice Roberts wrote: “We issue no holding on § 5 itself, only on the coverage formula.” But with no valid formula to identify which jurisdictions must preclear, Section 5 has no one to apply to. The practical result is the same as if it had been struck down.¹

When Preclearance Still Applies Today

One narrow route survives. Section 3(c) of the Voting Rights Act allows a federal court to order a specific jurisdiction into preclearance if the court finds it violated the Fourteenth or Fifteenth Amendment. This is sometimes called “bail-in” because the court pulls the jurisdiction into preclearance based on its own misconduct, rather than a nationwide formula.⁹

Once bailed in, the jurisdiction must submit any proposed voting changes for approval, just as it would have under Section 5, and the court decides how long the requirement lasts. Since Shelby County, courts have used this tool sparingly. Evergreen, Alabama, was bailed in for six years in 2014, and Pasadena, Texas, was ordered to submit future changes to its electoral map for approval in 2017. Each bail-in requires a separate lawsuit proving intentional discrimination, which is far more resource-intensive than the old formula-based approach.

What Replaced It for Most Voters

With preclearance dormant, the main federal tool for challenging discriminatory voting practices is Section 2 of the Voting Rights Act. Section 2 applies nationwide and prohibits any voting practice that “results in a denial or abridgement” of the right to vote on account of race. A violation exists if, based on the totality of circumstances, the political process is not “equally open to participation” by minority voters.¹⁰

The difference between the two provisions is who has to do the work. Under Section 5, the jurisdiction had to prove its change was not discriminatory before putting it into effect. Under Section 2, voters or the federal government must sue after the change is already in place and prove that it is discriminatory. A challenged rule can stay in effect for years while a Section 2 case moves through the courts, affecting multiple election cycles before any ruling.¹

Section 2 claims also became harder to win after the Supreme Court’s 2021 decision in Brnovich v. Democratic National Committee. The Court set out several factors courts should weigh when evaluating challenges to voting rules, including the size of the burden on voters, how much the rule departs from standard practice as of 1982, and the strength of the state’s justification. The decision gave states more room to defend challenged practices.

Efforts to Bring Preclearance Back

Congress has introduced legislation multiple times since 2013 to replace the invalidated coverage formula. The most prominent effort is the John R. Lewis Voting Rights Advancement Act, most recently introduced in the 118th Congress as S.4. The bill would create a “practice-based preclearance” system under a proposed Section 4A, requiring federal approval for specific categories of voting changes rather than targeting fixed geographic jurisdictions.¹¹

Under the proposed system, a state or local government that enacted a “covered practice,” such as certain redistricting changes or reductions in voting access, would need to get preclearance through the same two paths available under the original Section 5: submission to the Attorney General with a 60-day review window, or a declaratory judgment action in the D.C. district court. As of early 2026, the bill has not passed either chamber.

1
United States Department of Justice. About Section 5 Of The Voting Rights Act
2
Office of the Law Revision Counsel. 52 USC 10304 – Alteration of Voting Qualifications and Prerequisites to Voting
3
Office of the Law Revision Counsel. 52 USC 10303 – Suspension of the Use of Tests or Devices in Determining Eligibility to Vote
4
United States Department of Justice. Section 4 Of The Voting Rights Act
5
eCFR. 28 CFR Part 51 – Procedures for the Administration of Section 5 of the Voting Rights Act of 1965, as Amended
6
United States Department of Justice. Litigation Concerning Section 5
7
Justia Law. Beer v. United States, 425 U.S. 130 (1976)
8
Legal Information Institute. Shelby County v. Holder
9
Office of the Law Revision Counsel. 52 USC 10302 – Proceeding to Enforce the Right to Vote
10
Office of the Law Revision Counsel. 52 USC 10301 – Denial or Abridgement of Right to Vote on Account of Race or Color
11
Congress.gov. S.4 – John R. Lewis Voting Rights Advancement Act of 2024