Defending Against a Defense: The VRA’s Post-Shelby County Need for Congress to Check Preclearance by Revising Bailout

Preclearance, the central protective provision of the Voting Rights Act, has been deactivated by the U.S. Supreme Court. Congress or the Department of Justice will likely reactivate it. Preclearance defends minorities against state-sponsored voter discrimination. However, that shield bears a weighty constitutional price. It undercuts important structural protections in the Constitution that guard against tyrannical power and protect fundamental freedoms. Because the provision will probably be reactivated, Preclearance—which effectively checks voter discrimination—must itself be checked to defend constitutional safeguards. But this must be done without sacrificing the minority voter protection guaranteed by the Fifteenth Amendment. Revising its counterpart, Bailout, is the best way to ease the erosive burdens that Preclearance imposes on constitutional fortifications while still keeping the Preclearance shield in place. This Note examines the need for Congress to modify Bailout post-Shelby County v. Holder and offers Bailout revisions to help defend the safeguards of liberty provided by both the Constitution and the Voting Rights Act.