Mark A. Posner


This Article examines the manner in which the United States Department of Justice has carried out its responsibility for enforcing the preclearance requirement of Section 5 of the Voting Rights Act since its enactment in 1965. The Justice Department plays a central and preeminent role in the review of new voting laws and procedures adopted by Section 5 jurisdictions, and as Congress moves this year to extend Section 5 beyond its current 2007 expiration date, the question whether the Department has faithfully implemented Section 5 may play an important part in the anticipated Supreme Court review of the constitutionality of the extension. The Article identifies the unique features and broadly-encompassing provisions of the Section 5 remedy, analyzes the specific enforcement approaches utilized by the Justice Department, and scrutinizes the assessments that previously have been offered regarding the Department's enforcement actions. The Article concludes that, historically, the Justice Department has enforced Section 5 in a vigorous and principled manner, that the Department's enforcement approach largely is a product of the manner in which Congress constructed the Section 5 remedy, and that the Justice Department, accordingly, has implemented the Section 5 preclearance remedy in precisely the manner that Congress intended. The Justice Department's performance, therefore, fully supports congressional extension of Section 5 and a ruling by the Supreme Court that the reauthorization is constitutional.

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