Travis Crum, who wrote an excellent student note on Section 3 bail in under the Voting Rights Act, has written this guest post:
An Effects-Test Pocket Trigger
Following Shelby County v. Holder, civil rights advocates are searching for new strategies to protect voting rights. As I argued in my 2010 Yale Law Journal Note, section 3 of the Voting Rights Act provides a roadmap for the future. Commonly called the bail-in mechanism or the pocket trigger, section 3 authorizes federal courts to place States and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance. Designed to trigger coverage in “pockets of discrimination” missed by the coverage formula, section 3 has been used to bail-in over a dozen jurisdictions, including Arkansas, New Mexico, and Los Angeles County. Although the pocket trigger has been historically overshadowed by section 5, it has garnered recent attention as a potential replacement for the coverage formula (see here, here, here, and here).
So what does section 3 have to offer? First and foremost, it’s already the law of the land. With no need for lengthy hearings and legislative maneuvering, civil rights groups and the Justice Department can move expeditiously to reconstruct the preclearance regime. Indeed, civil rights groups moved last week to bail-in Texas based on findings of intentional discrimination in its 2011 redistricting plans. Second, because section 3 utilizes a coverage mechanism, it sidesteps the “equal sovereignty of the States” problem inherent in any coverage formula. Third, the pocket trigger doesn’t single out jurisdictions using decades-old proxies. Rather, section 3 perfectly tailors preclearance to “current conditions,” namely contemporary constitutional violations. And finally, the pocket trigger relies on judges—not Congress—to select jurisdictions for coverage.
The pocket trigger also reduces preclearance’s federalism costs. Courts have often required jurisdictions to preclear only certain problematic changes. Arkansas, for example, was required to preclear majority-vote requirements. Courts have further tailored section 3 preclearance by setting temporal limitations. Instead of mandating preclearance for a twenty-five year period, courts have fashioned more limited sunset dates—often imposing preclearance for a decade.
To be sure, the current bail-in mechanism has its limitations. Establishing a constitutional violation is no easy task, and bail-in litigation will stretch the resources of civil rights groups. The pocket trigger, moreover, forces civil rights groups and the Justice Department to go on the offensive; though once a jurisdiction is bailed-in, the balance of time and inertia would flip back in favor of minority voters.
In light of these concerns, the pocket trigger should be amended to authorize bail-in for violations of section 2 of the Voting Rights Act. As I stated in my 2010 piece, Congress should “decouple section 3 from its constitutional trigger, predicating bail-in on a finding of discriminatory effect.” In a post-Shelby County world, an effects-test pocket trigger has several advantages.
At the outset, it’s difficult to imagine a revamped coverage formula that could survive Congress and the Court. Many members of Congress would be loath to implicitly label their State as racist. Even agreeing on a coverage formula may be a political and theoretical fool’s errand. Although problems with the coverage formula were flagged during the 2006 reauthorization, there is still no agreed-upon replacement formula. And any revised coverage formula would have to satisfy Shelby County’s requirement that Congress “identify those jurisdictions to be singled out [for coverage] on a basis that makes sense in light of current conditions.”
So how would an effects-test pocket trigger work in practice? It would make bailing-in jurisdictions far easier and quicker. Litigation is a costly and lengthy endeavor, and evidence to support intentional discrimination claims can be difficult to acquire. An effects-test pocket trigger would ease these burdens and fundamentally alter the cost/benefit analysis for bringing section 2 suits. Most significantly, jurisdictions may find it in their self-interest to settle. In this age of austerity, governments, particularly local ones, are financially strapped and may view a preclearance settlement to be in their best interest. Indeed, the majority of section 3 cases have ended with consent decrees. For their part, civil rights groups and the Justice Department may be more willing to bring suit if they know that a preclearance remedy can be imposed at the end of litigation. This additional incentive might encourage more litigation against local jurisdictions, which are rarely the targets of section 2 litigation because the costs are too high.
Amending section 3 to authorize bail-in for violations of section 2 is a relatively straightforward response to Shelby County. But Congress need not stop there. Congress, for instance, could require bail-in for certain section 2 violations, such as a finding that a redistricting plan has a discriminatory effect. Congress could also set guidelines for how long jurisdictions should be bailed-in: a discriminatory polling place change could require preclearance for four years whereas a discriminatory redistricting plan could trigger coverage for ten years. And as Rick Pildes recently noted on this blog, Congress could fuse the civil-rights and universalist models by requiring preclearance for violations of HAVA and the Motor Voter Act—though this approach would necessitate a dramatic rethinking of preclearance’s doctrinal underpinnings, which target racial discrimination in voting.
Only time will tell if Congress responds to Shelby County. But by combining an enforcement action with a prophylactic remedy, the pocket trigger provides civil rights groups and the Justice Department with an immediate response to Shelby County and gives Congress a template for how to design a preclearance regime without a coverage formula.