Cody Gray has posted this draft on SSRN (forthcoming, Harvard Civil Rights-Civil Liberties Law Review). Here is the abstract:

On June 25, 2013, the Supreme Court issued its decision in Shelby County v. Holder, ruling that the coverage formula in Section 4(b) of the Voting Rights Act is unconstitutional and “can no longer be used as a basis for subjecting jurisdictions to preclearance” under Section 5. In the four months after Shelby County was decided, sixteen states enacted restrictions on voting that Republicans believe will root out election fraud but Democrats fear will disenfranchise minorities. Spurred to life by these developments, advocates for reform are now investigating responses to the Court’s decision, and scholars have suggested a number of ways that Congress might legislate to restore Section 5’s protections.

This article offers a new pathway for responding to Shelby County. In particular, I suggest a litigation-strategy aimed at expanding the federal observer program and preserving the “bailout” procedure through severance of the coverage formula from Sections 8 and 4(a)(1) of the Voting Rights Act. These provisions incorporate the coverage formula, but their invalidation does not follow from the reasoning of Shelby County. They impose minimal federalism costs on the States, are justified by “current needs,” and reasonably distinguish between the States based on contemporaneous complaints of voting discrimination. Moreover, severing the coverage formula from Section 8 would expand the federal observer program nationwide, thereby eliminating any concern about denying the states “equal sovereignty.” And there is good reason to believe that this result is exactly what Congress would want, which is the central determinant in severability analysis.

An expanded federal observer program would be helpful in the post-Shelby County world in at least five ways: (1) federal observer reports would serve as an efficient source of credible evidence in litigation to enforce the Voting Rights Act and the Fourteenth and Fifteenth Amendments; (2) a nationwide federal observer program would, by definition, document the current conditions of discrimination throughout the country, which could then be used to help fashion a new coverage formula; (3) federal observers would help ensure that poll workers correctly administer applicable prerequisites to voting; (4) the presence of federal observers would deter discriminatory behavior by citizens and election officials; (5) a nationwide federal observer program would strengthen the legitimacy of our federal election system and increase voter confidence in the accuracy of results. In addition to these benefits, retaining the federal observer program would preserve standing in bailout proceedings. This result is crucial, as the bailout mechanism provides covered jurisdictions with an incentive to eliminate practices that deny or abridge minority political participation and affords them the opportunity to distance themselves from the stigma associated with having been subjected to the VRA’s special remedial provisions.

The litigation strategy outlined in this article would not fully restore the safeguards of Section 5, but it would provide important protections to minority voters seeking to exercise their fundamental rights at the polls, can plausibly be accomplished in a foreseeable time-window, and should serve as an interim strategy designed to complement the legislative campaign.