There have always been two ways that areas could be put under the obligation to pre-clear their voting changes. The major way was through the formula set by statute, Section 4, that the Court has now struck down. The second route was through Section 3 (known as “the pocket trigger” or the “bail-in” provision). In response to a court finding of a specific constitutional violation of voting rights, Section 3 gives courts the power to order a jurisdiction to start pre-clearing its voting changes for a period of time. I have mentioned this before, along with others, but I want to elaborate on the details.
The structure of Section 3 has certain innately attractive features. First, Section 3 contains a lot of flexibility that can be tailored to the specific issues in specific places. Courts can — and have — ordered jurisdictions to pre-clear their changes for a defined, limited period of time, rather than indefinitely. For example, after New Mexico’s 1980 redistricting was found to be unconstitutional, the federal courts ordered New Mexico to pre-clear its redistricting plan for the next decade. After a decade, the courts then decided that New Mexico no longer needed to remain in the pre-clearance regime. Second, Section 3 permits the courts to target the pre-clearance obligation to the specific kinds of voting violations that have been found. Thus, if the only problem a state has been found to have involves redistricting, the courts can require that the state’s subsequent redistricting plan be pre-cleared, but not that all sorts of other voting changes — which have never been a problem — also get pre-cleared.
Second, for those members of Congress who are distrustful of the Department of Justice, the federal courts, not DOJ, are the entities in charge of pre-clearance review under Section 3. And third, most obviously, the Section 3 regime directly addresses the constitutional issues in the Court’s recent decision because pre-clearance is directly tied to recent, specific findings of the violation of voting rights.
To be made more effective, Section 3 could be modified in relatively straightforward ways on substance and process. On the former, because Section 3 still reflects its origins in 1965, it was designed to come into play only when there were court findings of “intentional discrimination” that violate the 14th or 15th amendments. Section 3 could be amended to include violations of the Voting Rights Act itself; Congress could also include significant violations of the other federal statutes to protect the right to vote that have been enacted since 1965, including the Motor Voter Registration Act and the Help America Vote Act. In addition, Section 3 should simply include any violation of the 14th and 15th Amendments with respect to voting rights. Since 1965, the Supreme Court has recognized in many contexts that the right to vote can be constitutionally violated even without intentional discrimination being found. Courts have varied thus far in whether they have required repeated violations of a single violation as sufficient to put an area under judicial pre-clearance.
Proceduraly, it’s not clear to me whether DOJ (or any “aggrieved person,” in Section 3′s language) can go into court today and institute a direct proceeding under Section 3 and ask for a jurisdiction now to be put under judicial pre-clearance because of violations found in past cases. Current Section 3 might be taken to mean that in an existing proceeding in which a violation is found, then as a remedy for that violation, the courts can require future judicial pre-clearance.
Why do I call this an “easy” change. On the policy side, it does not require dealing with all the complexities of crafting a new coverage formula. It is a discrete, targeted amendment that requires amending just a few phrases of the text of existing Section 3. And I don’t see any constitutional obstacles, if such an amendment were adopted.
On the political side, the question is easy compared to what? I don’t claim any expertise in the congressional political process; and I don’t mean to say it would be obviously “easy” to get Congress to agree to this. But the complexity of working through Section 4 is that it requires putting into a statute a formula that picks out in advance the areas that should be covered. Because Section 3 responds flexibly to actual recent violations, perhaps there is a path forward through this route.