Chapter 8 Section 3 Bail-in

• Library: America Votes! Challenges to Modern Election Law and Voting Rights (ABA) (2016 Ed.)

CHAPTER 8 SECTION 3 BAIL-IN

PAUL M. WILEY^*

On June 25, 2013, the Supreme Court proved T.S. Eliot wrong.¹ In the headlines of the days that followed, the Voting Rights Act had ended not with a whimper, but with one heck of a bang, by way of Shelby County v. Holder.²

The chorus of stinging criticisms began within minutes of Chief Justice Roberts announcing the Court's opinion, as Justice Ginsburg delivered a ten-and-a-half-minute dissent from the bench.³ Outside the courthouse, both ends of Pennsylvania Avenue voiced displeasure: Congressman John Lewis called the decision a "dagger in the very heart of the Voting Rights Act,"⁴ and President Obama was "deeply disappointed."⁵ By week's end—and in some cases, by day's end—many of the states previously covered by section 5 preclearance proved the doomsayers right, acting swiftly to propose and enact new measures with outsize effects on minority voter communities.⁶

But despite the rending of cloth and gnashing of teeth, the Voting Rights Act wasn't dead—nor is it. Without question, Shelby County struck a serious blow by knocking out section 5's preclearance formula. Knocking out just the preclearance formula, however, left in place the concept of preclearance itself.⁷ All the Court said was, "You can't do preclearance this way." For champions of voting rights, the fight certainly got harder. But the fight is not yet over.

One of the weapons left in those champions' arsenal is the focus of this chapter: "bail-in" or "pocket trigger" preclearance under section 3(c). Before Shelby County, hardly anyone outside a small circle of voting rights academics could have explained what section 3(c) was or did. Even academia may have missed it, as a 2010 student note in the Yale Law Journal was the first and only full-length piece of scholarship on bail-in preclearance.⁸ In the wake of Shelby County, though, section 3(c) has taken a place on the frontlines of continued voting rights struggles, and it will likely remain there unless and until Congress reanimates statutory preclearance under section 5.

This chapter will explain section 3(c)'s basic operation and its limited pre-Shelby history. It will then turn to section 3(c)'s viability as a post-Shelby remedy, and will conclude by analyzing proposed changes to section 3(c).

I. The Pocket Trigger of Section 3(c)^**

The preclearance regime struck down in Shelby County was one that operated by way of a statutory formula. Section 5 of the Voting Rights Act says what preclearance is and what it requires;⁹ section 4(b) sets out criteria for determining which states, counties, and other political subdivisions are subject to preclearance.¹⁰ Those criteria generally were the existence of certain discriminatory practices in the 1960s and 1970s: If a jurisdiction imposed a poll tax or literacy test in November 1964, for example, that jurisdiction would be subject to preclearance under sections 4(b) and 5.

In contrast to the formula-based preclearance regime of sections 4 and 5, section 3(c) is a case-by-case preclearance regime. It has been part of the Voting Rights Act since the VRA's initial enactment in 1965.¹¹ The only major change in section 3(c)'s provisions came in 1975, adding language to clarify that it would apply to violations of either the Fourteenth or Fifteenth Amendment¹² and permitting suits by persons other than the attorney general.¹³

The "pocket trigger" of section 3(c) works by allowing a federal district court to retain jurisdiction to approve voting changes proposed by the violating locality.¹⁴ The court must find that the locality's voting procedures violate the Fourteenth or Fifteenth Amendment,¹⁵ which in turn requires finding that the procedure has both discriminatory effects and was enacted with the intent to discriminate.¹⁶ Once the court makes both findings, it can require the locality to submit any subsequent voting changes to the court for approval.¹⁷ No changes can take effect without the court's sign-off for a period of time set down by the court.¹⁸ The approval process can also go through the Department of Justice. If the locality submits its changes to the attorney general and the attorney general makes no objections within 60 days, the change can take effect.¹⁹

Despite its long history, section 3(c) had been implemented sparingly in the decades leading up to Shelby County. Where it was implemented, it came into force primarily through acquiescence of the challenged locality.²⁰ In the nearly 50 years between enactment of the Voting Rights Act and Shelby County, 18 jurisdictions were brought under section 3(c)'s purview.²¹ More than half of those jurisdictions entered into consent decrees with the federal government.²² Even the State of Arkansas, one of the jurisdictions that fully litigated its case before coming under section 3(c), withdrew its appeal to the Supreme Court²³ and complied with the preclearance order.²⁴ Pocket-trigger preclearance has covered the gamut of voting rights violations, from vote dilution in Chattanooga's municipal districts²⁵ to Sandoval County, New Mexico's failure to provide voting materials in Native American languages.²⁶

II. Using Section 3(c) After Shelby County

While Shelby County introduced some significant doctrinal shifts—most notably the discussion of equal sovereignty on which much of the opinion was based²⁷—it did not do much to affect the constitutional underpinnings of section 3(c). As a remedy for violations of the Fourteenth and Fifteenth Amendments, section 3(c) already had to satisfy the Boerne requirements of congruence and proportionality.²⁸ Shelby County doubled down on the proposition in Northwest Austin Municipal Utility District Number One v. Holder²⁹ (NAMUDNO) that "congruence" must include an element of time—"current burdens," in the words of the Court, "must be justified by current needs."³⁰ Section 3(c) meets that requirement better than section 5 preclearance did because most section 3(c) preclearance will arise out of a lawsuit regarding current conditions. While "decades-old data"³¹ may inform the trial court's findings on discriminatory effect or intent, that data will not be the sole determining factor for section 3(c) as it was for section 5 preclearance.

But the big question for section 3(c) after Shelby County is not whether pocket-trigger preclearance is constitutional; the question is whether it can work in place of section 5 preclearance. After all, something about section 3(c) does smack of the bad old days of voting rights protection: suing one jurisdiction at a time, fighting infractions as they came and after they were implemented instead of nipping them in the bud. That Whac-A-Mole approach incurred huge expenses for voting rights advocates, and its ineffectiveness was what gave life to statutory preclearance in the first place.³²

Pocket-trigger preclearance, admittedly, cannot do anything about the problem of fighting only one jurisdiction at a time. Hopefully some of the cost and difficulty in doing so can be offset by an active, engaged Justice Department. What it can do, however, is keep bad-actor jurisdictions from taking more bad actions.

And there is some evidence that it is already working. In January 2014, the city of Evergreen in Alabama became the first jurisdiction brought under section 3(c) preclearance after Shelby County.³³ The plaintiffs in Evergreen sued while the city was still under section 5 preclearance, alleging that the city had discriminated against minorities by excluding minority voters from the voting rolls and by packing two of the city's five election districts with black voters.³⁴ After Shelby County loosed Evergreen from section 5 preclearance, the plaintiffs moved for summary judgment and requested that the court impose section 3(c) preclearance. Like most of its 18 predecessors, Evergreen supported the preclearance order, and Judge Callie Granade ordered Evergreen to preclear any changes to district boundaries or voter qualifications through December 31, 2020.³⁵

The reaction to the Evergreen preclearance order demonstrates both section 3(c)'s advantages and its shortcomings. Local civil rights activist Jerome Gray called the order "welcome and valuable," saying it would give him and other activists "leverage . . . so that [the city] can't get away with doing things with impunity now that we don't have Section 5."³⁶ The city's lawyer praised preclearance for giving the city some stability over its election procedures and heading off costly lawsuits.³⁷ But the plaintiff's attorney, John K. Tanner, raised the problem with relying on section 3(c): the orders are hard to get, are limited in scope, and bringing a lawsuit requires plaintiffs to "exhaust considerable resources . . . before they can gain what amounts to a level playing field."³⁸

A more high-profile example of...