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Book Chapter

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Congress voted last summer to reauthorize the expiring provisions of the Voting Rights Act. Among the reauthorized provisions is the Section 5 preclearance process, which requires "covered" jurisdictions to obtain federal approval before implementing changes to their voting laws. It is widely assumed that the reauthorization of Section 5 will survive constitutional scrutiny only if the record Congress amassed to support the statute documents pervasive unconstitutional conduct in covered jurisdictions for which preclearance offers a remedy. This paper takes issue with that assumption, arguing that precedent requiring such a record for new congressional legislation enforcing civil rights ought not apply when Congress renews an existing, operational statute such as Section 5. To require such a record would mean that only ineffective statutes are entitled to reauthorization. Instead, the inquiry should consider the quality of minority political participation in covered jurisdictions operating without the constraints imposed by the preclearance requirement. Judicial decisions construing the Section 2 of Voting Rights Act offer one lens through which to consider this prospect. While Section 2 differs from Section 5 in significant ways, the very complexity of the Section 2 inquiry renders judicial opinions addressing these claims a rich source of information detailing political participation in the defendant jurisdictions. This paper provides an overview of judicial findings from 331 Section 2 lawsuits decided since 1982, and compares how these findings differ between covered and non-covered jurisdictions.