“Devising a Standard for Section 3: Post-Shelby County Voting Rights Litigation”

Roseann Romano, adding to a growing list of important student notes on bail-in, for the Iowa Law Review:

In response to the Supreme Court’s decision in Shelby County v. Holder, which dismantled the modern voting rights enforcement regime by declaring section 4(b) of the Voting Rights Act (“VRA”) unconstitutional, plaintiffs in voting rights lawsuits have sought protection from a little-used provision of the VRA: section 3(c). Section 3(c) allows courts to require jurisdictions whose voting practices violate the Fourteenth or Fifteenth Amendment to submit future voting changes to a preclearance process. However, in light of little legislative history and only one instance of judicial interpretation of the provision, courts face a challenge in determining when a jurisdiction’s behavior triggers the section 3(c) remedy. Accordingly, this Note examines section 3(c) and the legal standards applied to find Fourteenth or Fifteenth Amendment violations in voting rights cases. This Note then proposes an invidious discrimination standard for determining when a jurisdiction’s voting practices trigger section 3(c). By applying this standard to two ongoing voting rights cases, this Note argues that a less burdensome standard than the intentional discrimination standard does not dramatically depart from past voting rights jurisprudence and is necessary to strengthen the voting rights enforcement regime.

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