Volume 103

Rethinking District of Columbia Venue in Voting Rights Preclearance Actions

by Michael E. Solimine

In Shelby County v. Holder the Supreme Court held that the preclearance provision of the 1965 Voting Rights Act (VRA) was unconstitutional as presently constituted.  Section 5 of the VRA requires certain states, mainly in the Deep South, to preclear certain changes to their election laws before they can go into effect. These states must either seek approval from the Department of Justice (DOJ), or file a declaratory judgment action in the United States District Court for the District of Columbia. If a state pursues the latter option, a three-judge district court is convened, and a direct appeal to the Supreme Court is available. Section 4 sets out criteria to determine which jurisdictions are subject to Section 5, and a majority of the Court held in Shelby County that the coverage formula in Section 4 was unconstitutional on federalism grounds, as it was based on decades-old voting data and unfairly singled out a small number of states for disparate treatment.

The majority permitted Congress to revamp and update the Section 4 criteria in response to the decision by tying it to current evidence of voting discrimination in the states. Following Shelby County, an avalanche of scholarly commentary appeared on the constitutionality of Section 5 and various possible legislative fixes to the statute. Responding to the Court’s invitations, Congress has introduced bills to adjust Section 4 and other aspects of the VRA. What is missing from this commentary and these proposals, however, is virtually any discussion of the geographic limitation to the litigation option to apply for preclearance. That is, despite the federalism concerns raised by lodging exclusive venue of such actions in the federal courts for the D.C., neither the Court nor commentators have directly addressed any legal or policy problems with that exclusive venue. This inattention is probably due in large part to the plaintiffs and the numerous amici in Shelby County not having explicitly raised the exclusive D.C. venue of preclearance litigation as a federalism concern.

This Essay proceeds as follows: Part II summarizes the history and controversies attending the passage of Section 5, focusing on the placement of exclusive venue under that provision in the District of Columbia. The same controversy concerned early litigation under that provision and the first two reauthorizations of Section 5, but it eventually dissipated. Part III argues that a reinvigoration of that debate is appropriate for several reasons. The original aims for the exclusive venue are no longer sound today; there is no present need for this type of specialized and exclusive judicial venue; and the jurisprudence on Section 5, should Congress statutorily reauthorize it in the wake of Shelby County, could benefit from the normal application of venue rules, which would permit the percolation of issues in federal courts throughout the country. Part IV concludes this Essay.

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