Reviving the Prophylactic VRA: Section 3, Purcell, and the New Vote Denial.

• Author: Herman, David

NOTE CONTENTS INTRODUCTION 1464 1. ROOTS OF THE CURRENT CRISIS 1469 A. The Coming Wave of Vote Denial 1469 B. The Purcell Problem 1475 C. Section 3: The Voting Rights Act's Underused "Pocket Trigger" 1481 II. TWO DOCTRINAL INNOVATIONS TO REALIZE THE PROMISE OF SECTION 3 1486 A. Section 3 Applies Based on Both Due-Process and Equal-Protection Violations 1486 B. Section 3 Applies When Courts Issue Declaratory Judgments, Not Only Injunctions 1498 III. A MODEL FOR VOTING-RIGHTS LITIGATION IN THE FUTURE 1508 A. Two Examples: People First of Alabama v. Merrill and Veasey v. Abbott 1508 B. Practical Considerations 1512 C. Constitutional Considerations 1517 D. Strategic Considerations 1525 CONCLUSION 1527 INTRODUCTION

For almost fifty years, the centerpiece of the Voting Rights Act (VRA) was Section 5, which required states with a history of racial discrimination to preclear changes to their election laws with the Department of Justice (DOJ). (1) According to Section 4 of the Act, states with a history of presumptively discriminatory voting practices were automatically covered by preclearance, (2) though they could petition to bail out of coverage after ten years of good behavior. (3) For uncovered states, the Act was more lenient. Under Section 2, such states can be sued after the fact if they pass voting laws that result in denial or dilution of the right to vote based on race or language status. (4) And, if states violate constitutionally protected voting rights, they can be "bailed in" to preclearance under Section 3 of the Act, forcing them to get approval from a court before making subsequent changes to their election laws. (5)

In 2013, Shelby County v. Holder effectively ended Section 5 preclearance under the VRA. (6) Since then, states have played a game of cat-and-mouse with voting-rights lawyers who challenge election laws under either Section 2 of the Act or on constitutional grounds. (7) States pass restrictive voting laws, advocates get them enjoined, states tweak the laws to escape the injunctions, advocates sue again, and so on. (8) Though far from ideal, this cycle seemed perhaps tolerable in the years immediately after Shelby, with voting-rights advocates winning significant victories in states like Florida, Texas, and North Carolina. (9)

Since the 2020 election cycle, this fragile situation has become increasingly unstable. First, a number of states have engaged in aggressive vote denial, (10) erecting barriers to voter registration, purging voters from registration rolls, and even passing laws that require election officials to investigate and prosecute individuals suspected of voting illegally. (11) Not only are more of these laws passing, but the laws themselves are increasingly harsh and based on weak justifications. Exacerbating these trends is the recent surge in efforts to deny the legitimacy of the electoral process and the invocation of election fraud to justify meddling with future electoral outcomes. (12) Advocates will thus find themselves ever more occupied with vote-denial litigation, which has historically been somewhat less common than challenges to redistricting or the use of at-large elections. (13)

Exacerbating this trend, the Supreme Court has significantly expanded the so-called Purcell Principle, which bars federal courts from enjoining state voting laws "in the period close to an election." (14) The doctrine had previously been used to block changes made just one month before a general election. (15) Now it reaches as far as almost six months before a general election (and nearly two months before the start of primary elections). (16) Combined with Shelby, Purcell now makes it much easier for states to hold at least one election under unlawful procedures. (17) Restrictive laws are no longer subject to federal review before passing, and by delaying litigation, states can render them immune from injunctions once enacted. This creates harmful incentives for states to pass laws they suspect will eventually be struck down, as well as dawdle and delay in hopes that it will become too late to enjoin laws before the next election. (18)

This Note argues that these two developments--the coming wave of vote denial and the expansive Purcell Principle - should prompt a reappraisal of Section 3 of the VRA. Namely, the constitutional wins that are needed to trigger the bail-in remedy are likely to become relatively more attainable, and the injunctions that have historically been the alternative to bail-in are unlikely to be forthcoming. Although Section 3 cannot solve the immediate problem of an unconstitutional election, it can prevent the problem from compounding over time, deter efforts to delay and drag out litigation, and block repeat offenders from gaming the system.

This Note advances two interpretations of Section 3 that, if adopted, will help it meet the needs of the present moment. First, contrary to the widespread belief that Section 3 requires a finding of intentional racial discrimination, the text, history, and structure of the Act demonstrate that it can follow from an unconstitutional restriction of the fundamental right to vote under the Due Process Clause of the Fourteenth Amendment, as well as from non-race-based violations of the Equal Protection Clause. (19) The perception that Section 3 requires intentional discrimination has stunted its use (20) and lessens its applicability to the growing number of facially neutral state laws that burden voting across the board. (21) Second, because declaratory judgments are a form of "equitable relief," the text of Section 3 suggests that the bail-in remedy may be based on declaratory judgments alone. This would allow courts to impose consequences--preclearance for subsequent elections--on states without disrupting an ongoing election by issuing injunctions.

What effect would this have on states? First, as states likely want to avoid the cost, delay, and stigma associated with preclearance, (22) this strategy will force legislatures to think twice before passing potentially unconstitutional laws at the last minute. If the cost of holding one election under unconstitutional procedures is indefinite federal supervision, states might reevaluate the benefits of walking that path. Second, knowing that bail-in is a viable alternative to injunctions will reduce incentives for states to delay and drag out litigation in the hopes of benefiting from Purcell. Finally, knowing that bail-in will result from an adverse ruling on constitutional grounds will disincentivize the most egregious abuses of voting rights, causing states to err on the side of laws that, at most, violate voting-rights statutes without being unconstitutional.

Finally, because Section 3 is best understood as a mechanism for enforcing constitutional rights, it is less susceptible to constitutional attacks than other parts of the VRA. It also offers an opportunity for advocates to harmonize at least some of their strategies and rhetoric with the current Court's understanding of the VRA. Importantly, this will generally require focusing on applying Section 3 to vote denial, not vote dilution, (23) and picking cases carefully to ensure that there are exceptionally solid constitutional claims in play.

Part I of this Note traces the roots of the current crisis in voting rights and summarizes the scholarly literature on both the Purcell Principle and Section 3. Part II contributes to the literature on Section 3 by arguing that the bail-in remedy may be based on due-process violations (not just equal-protection ones), and that it may be based on declaratory judgments (not just injunctions). Part III explains how these observations can make Section 3 a more effective defensive tool for dealing with the impending wave of voting restrictions. Finally, Part IV addresses practical and constitutional counterarguments.

1. ROOTS OF THE CURRENT CRISIS

   1. The Coming Wave of Vote Denial

      Although legal fights over election practices are nothing new, some unique attributes of the present moment create serious risks to the franchise. Since the 2020 election, the volume of restrictive voting-rights laws being proposed in state legislatures has skyrocketed. (24) Restrictions on access to the polls have been driven primarily by Republican state legislatures and have been spurred in part by widespread support for conspiracy theories surrounding the 2020 election. (25) Nineteen states enacted new voting restrictions in 2021, (26) and seven states followed their lead in 2022. (27) Seven states also passed "election interference" laws in 2022, some of which bolstered state resources for the criminal investigation and prosecution of alleged election misconduct. (28) Analysts tracking election bills expect 2023 to be "another prolific year for election-related legislation" based on early legislative activity. (29)

      For example, take Arizona's new Documentary Proof of Citizenship (DPOC) law, HB 2492, which passed in March 2022 and went into effect in January 2023. (30) Although Arizona already requires--lawfully--that new registrants for state elections provide DPOC, (31) HB 2492 goes much further. According to county-election officials, the law applies retroactively, (32) requiring them to purge voters who have not provided DPOC from registration rolls, possibly on the eve of elections. (33) The law also newly bars many registered voters from voting early by mail or voting at all in presidential elections if they have not provided DPOC. (34) Moreover, the law requires county-level officials to proactively investigate the citizenship of new registrants and registered voters using sources such as state driver-license and vehicle-registration databases, third-party public-health databases, and federal immigration databases. (35) Officials are also free to use whatever other sources they wish, with no formal limits in the statute. (36) As voting-rights advocates have noted, none of these databases...