Why Preclearance Was Always Unconstitutional

There is a well-worn phrase that should haunt every policymaker who ever felt the warm glow of a well-intentioned law. The road to serfdom is paved with good intentions. Friedrich Hayek wrote it. I have watched it come true countless times. No law illustrates the principle better than the Voting Rights Acts preclearance regime.

Let me be clear from the start. The Voting Rights Act of 1965 was a landmark achievement in securing the franchise for millions of Americans who had been systematically denied that right by Jim Crow. No principled conservative denies that the Fifteenth Amendment means what it says. But when we talk about preclearance, the requirement that certain states and jurisdictions get federal permission before changing their voting laws, we are not talking about the Fifteenth Amendment. We are talking about something far more constitutionally suspect. A federal power grab that treated some states as second-class citizens, frozen in amber by 1965 data, and justified by an assumption that the central government knows best.

It took the Supreme Court in Shelby County v. Holder in 2013 to do what the Framers would have done from the start. Strike down the coverage formula as unconstitutional. But the political class still reveres preclearance as a sacred cow. It is time to slaughter it with the blade of first principles.

The Constitutions Design

The Tenth Amendment is clear. Powers not delegated to the United States, nor prohibited to the states, are reserved to the states respectively, or to the people. The Constitution does not create a hierarchy of states. Some more sovereign, some less. The original design was a union of co-equal republics, each with its own legislature, its own laws, and its own dignity.

When Congress passed the 1965 VRA, it included a temporary provision, Section Five, requiring covered jurisdictions to get preclearance from the Department of Justice or a federal court before changing any voting law. The coverage formula was based on 1964 turnout and the existence of discriminatory tests. The theory? Congress is enforcing the Fifteenth Amendments guarantee that the right to vote shall not be denied or abridged on account of race, color, or previous condition of servitude.

But the Fifteenth Amendment gives Congress the power to enforce its prohibitions by appropriate legislation. The key word is appropriate. Does treating the entire state of Mississippi as a ward of the federal government, indefinitely, until the DOJ says otherwise, constitute appropriate enforcement? Or does it violate the bedrock constitutional principle of equal sovereignty among the states?

The Supreme Court held in Shelby County that the coverage formula was based on decades-old data and eradicated practices. More importantly, the Court recognized that the fundamental principle of equal sovereignty among states, while not explicit in the Constitution, is deeply ingrained in the structure of our government. Preclearance, the Court noted, imposes substantial federalism costs and must be exceptional and temporary. By 2013, it was neither.

Justice Scalia, dissenting on different grounds, nevertheless acknowledged that Section Five is a drastic measure that limits the sovereignty of the States. The Framers would have recognized that immediately. James Madison wrote in Federalist 45 that the powers delegated to the federal government are few and defined, while those remaining with the states are numerous and indefinite. Preclearance inverted that order, making the states most fundamental power, regulating their own elections, subject to federal approval.

The Perverse Incentives

Thomas Sowell taught us to look at the results, not the intentions. Preclearance was intended to prevent racial discrimination in voting. What did it actually do?

First, it created a perverse incentive for covered jurisdictions to do the minimum necessary to satisfy the DOJ, rather than innovate or reform their election laws. Henry Hazlitts Economics in One Lesson warns us to consider the seen and the unseen. The seen was that no openly discriminatory law got through. The unseen was the hundreds of reasonable election reforms that never got proposed because the burden of preclearance was too high.

Take Texas, which was partially covered under Section Five. In 2011, the state passed a voter ID law, a law that, whatever you think of voter ID, was far from the poll taxes of Jim Crow. The DOJ blocked it under Section Five, citing concerns about minority turnout. Years later, after Shelby County, the law was allowed to go into effect, and studies showed no statistically significant impact on minority turnout. All that time and taxpayer money wasted on a federal veto that accomplished nothing but delay.

Second, preclearance ignored discrimination that occurred outside the covered jurisdictions. A county in Nebraska that never had a literacy test could pass any voting law it wanted with zero federal oversight. Meanwhile, a county in Alabama that cleaned up its act decades ago still had to ask permission to move a polling place. The coverage formula was based on 1960s data, outdated even in the 1980s, laughable by 2000. This is the unseen Hazlitt taught us to watch for. The discrimination that could have happened elsewhere got none of the attention, while the ghost of past sins haunted the South.

Third, it created a culture of dependency. State officials in covered jurisdictions learned to grovel before the DOJ rather than assert their constitutional rights. They became supplicants, not sovereigns. That is not how a republic works. A republic requires citizens who govern themselves, not subjects who await permission from the capital.

The Originalist Case

Justice Scalias jurisprudence gives us the tools to see preclearance for what it is. He wrote in A Matter of Interpretation that the Constitutions text must be given the meaning it had when it was adopted, not updated by judges or Congress to fit modern sensibilities. The Fifteenth Amendment says Congress may enforce its provisions by appropriate legislation. What is appropriate? It cannot mean whatever Congress wants, or the Constitution would have no restraining power.

The Framers understood that the states were the primary protectors of individual rights. The Constitutions structure, federalism, separation of powers, a limited enumeration of federal powers, was designed to prevent exactly this kind of federal overreach. The Fourteenth and Fifteenth Amendments gave Congress the power to enforce, but not to supplant state authority. Preclearance did not enforce the Fifteenth Amendment. It replaced state legislatures with a federal bureaucracy.

Worse, preclearance treated state governments as inherently untrustworthy, not because they were guilty of discrimination today, but because they were guilty fifty years ago. That is not enforcement. That is collective punishment. The Constitution does not authorize guilt by geography. Imagine if Congress passed a law today requiring every county that had a slaveowner in 1860 to get federal permission before changing its property tax rates. We would rightly call that absurd. Preclearance was no different, just sanctified by the good intentions of the civil rights era.

The Objection Answered

But preclearance prevented real discrimination. Without it, covered jurisdictions would have reverted to Jim Crow. This claim is made with the confidence of someone who has not looked at the data. The jurisdictions covered by Section Five had already improved dramatically by the 1990s. Black voter registration and turnout in covered states were on par with or exceeded non-covered states within two decades of the VRA. By 2004, black turnout in Mississippi exceeded white turnout. The formula was still targeting the old Confederacy long after the Confederacys Jim Crow laws were dead and buried.

More importantly, the Fifteenth Amendment itself still applies. If a state passes an intentionally discriminatory voting law today, the DOJ can sue under Section Two of the VRA, which is a permanent, nationwide ban on racially discriminatory voting practices. That section has teeth. The 1965 Act included both Section Five and Section Two. Section Two was strengthened in 1982 to cover any voting practice that results in racial discrimination, regardless of intent. The safety net was already there.

What the preclearance defenders really want is not a safety net. It is a federal veto over how states run their elections. They want the power to block any voting change they do not like, under the guise of preventing discrimination. That is a power grab, pure and simple. It is why the John Lewis Voting Rights Advancement Act, which would revive and expand preclearance, is so dangerous. It would give the federal government unprecedented control over state election administration, precisely what the Framers feared.

The Human Stakes

This is not an abstract debate about legal theories. Preclearance tells the citizens of certain states that they are not trusted to govern themselves. Their representatives are not competent to change their election laws without permission from Washington. They are second-class citizens in their own country.

That is not the America of the Founders. That is the America of the British Crown, where the kings governors could overturn colonial laws at will. Patrick Henry warned against the tyranny of the legislature, and James Madison argued that the separation of powers exists to protect liberty. Preclearance unites legislative, executive, and judicial power in a single federal entity. The DOJ decides whom to approve, and the D.C. Circuit court provides limited review. No checks, no balances, just permission slips.

Conservatives believe that the best way to protect rights is to keep power close to the people. Preclearance does the opposite. It centralizes power, freezes innovation, and substitutes the judgment of unelected bureaucrats for the elected representatives of the people. It treats the Constitution as a living document that can be amended by congressional statute, rather than by the amendment process. And it disrespects the principle of equal sovereignty that has been central to American federalism since the Declaration of Independence.

The Supreme Court was right to strike down the coverage formula. Congress can pass a new preclearance formula if it wants, but it must be based on current data, targeted to actual problems, and respectful of the equal sovereignty of the states. And if Congress cannot do that, then let Section Two do the work it was designed to do.

Liberty flourishes when government is limited, laws are clear, and states are equal. Preclearance violated all three. It is time to let it go.