St. Mary's Law Journal


In Presley v. Etowah County Comm’n, the Court held enactments altering or reallocating elected officials’ powers do not directly relate to or affect voting. Therefore, not subject to judicial or administrative preclearance under Section 5 of the Voting Rights Act of 1965. However, the Court’s holding in Presley, that the changes at issue must directly relate to voting, contradicts the Court’s earlier holdings that indirect or minor changes affecting voting must meet Section 5 preclearance requirements. In Presley, the Court limited the coverage of Section 5 by holding that enactments reallocating elected officials’ decision-making authority do not require judicial or administrative preclearance because these enactments do not bear a direct relation to or have a definite impact upon voting itself. The Court held that Section 5 unambiguously applies only to modifications of voting rules, concluding that changes in elected officials’ decision-making authority are routine matters of governance outside the scope of Section 5 operations. The Court stated that expanding the scope of Section 5 to include enactments transferring elected officials’ authority over their respective budgets would expand Section 5 coverage far beyond the Act’s statutory language and congressional intent. By refusing to recognize reallocations of elected officials’ decision-making authority as changes “with respect to voting,” the Court has established a standard upon which state and local governments can constitutionally diminish the political effectiveness of officials representing minorities. If the Court had followed its twenty-year practice of deferring to the Attorney General’s interpretation of the Act and allowing Section 5 the “broadest possible scope” of coverage, the Court could easily have avoided the inevitable confusion which will result from Presley as to which voting changes require preclearance.


St. Mary's University School of Law