Preclearance, a term most familiar to legal wonks and AP history students, was the central topic of a briefing Friday before the U.S. Civil Rights Commission at the Crabtree Marriott in Raleigh.
The event space was mostly packed with academics, activists, and others interested in hearing the testimonies of panelists to the commission, an independent, bipartisan body created by the Civil Rights Act of 1957 that helps inform policymakers on civil- and voting-rights issues.
Preclearance was the policy that required certain states—mostly Southern states with a history of racial discrimination, as well as parts of other states, including North Carolina—to obtain federal preapproval before making any changes to election laws, as ordered by Section 5 of the Voting Rights Act of 1965.
The conversation, then, focused on the significance of the Supreme Court's 2013 Shelby County v. Holder decision, which struck down Section 4b of the VRA, which contained the formula for how the feds determined which states were subject to preclearance.
With Section 4b gone—and with the GOP Congress in no mood to tweak that formula to assuage the Supreme Court—Section 5 was effectively rendered obsolete. States no longer needed the Department of Justice's permission to reconfigure voting laws, often in ways intended to diminish minorities' voices.
Vanita Gupta, a panelist who headed the Department of Justice's Civil Rights Division in the final years of the Obama administration, described Shelby as "the most devastating blow to voting rights in the modern era" and a decision that "dramatically weakened the federal government's ability to prevent unlawful attempts to disenfranchise, harass, and intimidate American citizens as they attempt to exercise their most basic right as Americans."
After Shelby, North Carolina, Texas, and several other states quickly moved to enact laws that were immediately contested in lawsuits as racially discriminatory.
Peyton McCrary, a former historian in the DOJ's Civil Rights Division, said that the most dramatic shift wrought by Shelby is "the adoption of laws that burden—designedly or otherwise—the ability of minority voters to vote in person."
McCrary cited North Carolina's 2013 voting law, often described as the most extreme in the country. It shortened the early-voting period to ten days, outlawed same-day registration and out-of-precinct voting, and implemented a strict photo-ID requirement, among other things.
Critics argued that the Republican-led General Assembly designed all of these things to make it difficult for Democratic-leaning minorities to vote. In 2017, the Supreme Court refused to reinstate the law after the U.S. Circuit Court of Appeals struck it down; the appeals court famously held that the law sought to "target African-Americans with almost surgical precision."
Justin Levitt, a deputy assistant attorney general in the Obama administration, argued that the true danger of Shelby lies in the fact that racially discriminatory practices will no longer be headed off ahead of time. With preclearance gone, fighting racist voting laws requires litigation, which in turn requires time and money—"with harm accruing as litigation plods along."
In the meantime, Levitt pointed out, "An election held under conditions later found to be unlawful works its harm immediately."
In North Carolina, this is an especially urgent issue.
Bishop William J. Barber II, the fiery former leader of the N.C. NAACP, said that the General Assembly redrew districts by "stacking and packing" black voters into as few districts as possible in order to retain power. Because the existing legislative districts have been declared unconstitutional and new, court-ordered districts will be in place for this November's elections, Barber says, "We had an unconstitutionally constituted legislature."
In other words, the legislature is making laws even though, in his view, it was illegitimately elected.
But in North Carolina and elsewhere, fixing redistricting problems won't be easy, argued panelist Han von Spakovsky, a senior legal fellow at the conservative Heritage Foundation.
"Today," he said, "five years after Shelby County, there is still no evidence of widespread, systemic, official discrimination by any of the formerly covered jurisdictions or any other state that would justify re-imposing the onerous Section Five preclearance requirement."
Furthermore, Spakovsky said, a downturn in enforcement actions seems to reflect "a reduction in discriminatory actions that would justify a DOJ lawsuit."
Alternatively, it could also reflect a Department of Justice, now led by Attorney General Jeff Sessions, that is turning a blind eye to abuses.
The commission will use the panelists' testimony and public comment heard in Raleigh to form the basis of its 2018 report to Congress, the president, and the American people regarding the state of voting rights across the nation.