“Shelby and Section 3: Pulling the Voting Rights Act’s Pocket Trigger to Protect Voting Rights After Shelby County v. Holder”

Paul Wiley has written this very (and timely, given Texas) important student note for the Washington and Lee Law Review. From the Introduction:

One of those portions of the Voting Rights Act that remained untouched by Shelby County is § 3(c)15—the “bail-in” or “pocket trigger” provision.16 Section 3(c) authorizes a court presiding over a successful voting rights suit to impose a preclearance regime on the defendant jurisdiction, thus requiring the jurisdiction’s subsequent voting-related changes to be approved by the court before they can go into effect. In the wake of Shelby County, Attorney General Holder specifically mentioned § 3(c) as one of the tools the Department of Justice would use to continue protecting voting rights. Lawsuits filed in North Carolina and Texas have backed up the Attorney General’s promise, with the federal government invoking § 3(c) in its prayers for relief. These decisions by federal authorities reflect the view of voting rights scholars that the § 3(c) pocket trigger is one of the better immediate, short-term solutions to continuing to protect voting rights after Shelby County.

But using § 3(c) more frequently poses several practical questions about its implementation. To date, only eighteen jurisdictions have been brought under § 3(c)’s provisions, almost all by consent decree. This scant implementation, specifically in the adverse litigation context, provides little guidance about how courts should apply § 3(c)’s retention-of-jurisdiction provision. This Note addresses three major questions about implementing  § 3(c) after Shelby County. First, which party bears, or should bear, the burden of proof on the element of discriminatory purpose for proposed voting changes subject to § 3(c) preclearance, and should there be a presumption of discriminatory purpose? Second, how long can courts retain jurisdiction under § 3(c), should there be a default time period, and under what conditions should a covered jurisdiction be released? And third, what is the standard for appellate review for § 3(c) relief, and does it change depending on whether the appellant is challenging the initial imposition or challenging later decisions by the court to disallow voting changes?



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