The Voting Rights Act's secret weapon: pocket trigger litigation and dynamic preclearance.

• Author: Crum, Travis

NOTE CONTENTS INTRODUCTION I. THE CONSTITUTIONAL CONTROVERSY OVER SECTION 5 A. Katzenbach vs. Boerne B. NAMUDNO II. THE POCKET TRIGGER A. Bailed-in Jurisdictions B. Lessons Learned from Pocket Trigger Litigation III. STOPPING NAMUDNO II A. Saving Section 5 from the Court B. Responding to NAMUDNO II IV. A MODERN VOTING RIGHTS ACT A. Surviving Constitutional Scrutiny 1. Boerne Step One 2. Boerne Step Two 3. Boerne Step Three a. From Coverage Formula to Coverage Mechanism b. Targeted Preclearance c. Section 3 Coverage Is Both Permanent and Temporary B. Dynamic Preclearance 1. Frozen Preclearance: A History of Coverage and Bailout 2. Toward a New Coverage Regime C. The Vanguard of Voting Rights V. AMENDING THE POCKET TRIGGER CONCLUSION INTRODUCTION

Section 5 of the Voting Rights Act (VRA) (1) is living on borrowed time. Originally enacted to overcome "nearly a century of widespread resistance to the Fifteenth Amendment," (2) section 5 requires certain "covered jurisdictions" to preclear all voting changes with federal authorities. Over the course of four decades, the VRA abolished Jim Crow and empowered minority voters. This resounding success has led some to question whether section 5 has created a world in which its protections are no longer constitutional. In 1997, the Supreme Court amplified these concerns by limiting Congress's Fourteenth Amendment enforcement authority in City of Boerne v. Flores. (3) When section 5 was reauthorized in 2006, (4) commentators speculated whether the Court would invalidate one of the crown jewels of the civil rights movement. (5)

In Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO), (6) the Court made clear that section 5 was constitutionally suspect. NAMUDNO, a Texas water district created to fund infrastructure for a housing development, sought a statutory exemption from the Act's preclearance requirements. In the alternative, NAMUDNO brought a constitutional challenge, claiming that the VRA impermissibly infringed upon state sovereignty. At oral argument, the Justices lambasted the Justice Department and NAACP advocates. (7) Justice Kennedy, in particular, focused on the Act's coverage formula, questioning whether Congress justified section 5's "differentiation between the States." (8) Even more telling, the Justices asked how the case could be resolved without reaching the constitutional question. (9)

When the decision was announced, however, there were no grand pronouncements on race, voting rights, or federalism. Invoking the constitutional avoidance doctrine, Chief Justice Roberts, writing for an eight Justice majority, held only that "all political subdivisions--not only [counties and parishes]--are eligible to file a bailout suit." (10) Instead of invalidating section 5, the Court granted NAMUDNO an opportunity to "bail out" of the Act's coverage. (11)

The narrow statutory ruling seemed contrived, surprising many in the academy and the civil rights community. (12) Some interpreted the Court's hesitation as a sign that section 5 was too important to strike down. (13) Others viewed it as "a warning to Congress that it needs to reconsider section 5, and shore it up, if it can, with a new formula for coverage." (14)

Another constitutional challenge is inevitable, and supporters of a robust Voting Rights Act cannot presume the Court will blink again. The implausibility of the Court's statutory argument indicates that there were not five votes to uphold the Act. (15) Indeed, NAMUDNO "reads like a rough draft of [an] opinion ... str[iking] down Section 5." (16) One can easily imagine Chief Justice Roberts remarking that "[i]t is a sordid business, this divvying us up by [state]." (17) The absence of a reassuring concurrence further evidences section 5's future vulnerability: no Justice thought it appropriate to speak out in support of the VRA. NAMUDNO is not an exercise in judicial minimalism for its own sake. Rather, the Court directed Congress to amend section 5 or risk further diminishment of its enforcement authority.

How, then, can NAMUDNO II (18) be stopped? Because inaction is not a viable option, a flurry of proposals will be put forth to amend the Voting Rights Act. Many of these proposals, however, were before Congress during the 2006 reauthorization and failed to attract support. (19) These proposals share a singular flaw: they ignore what can be done using the existing Act.

This Note examines an obscure provision of the VRA: section 3(c). (20) Commonly called the bail-in mechanism or the pocket trigger, section 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance. Using this remedial provision, the Department of Justice (DOJ) and civil rights groups can redefine the preclearance regime through litigation. Designed to trigger coverage in "pockets of discrimination" (21) missed by section 5's formula, section 3 was included in the original Voting Rights Act. (22)

Despite this pedigree, the academic literature has ignored the pocket trigger, consigning it to footnotes and trivia. The pocket trigger has never received full-length treatment from any book, article, note, or comment. (23) This Note fills the academic void, detailing how the pocket trigger works and where it has been used in the past. It then argues that the pocket trigger can bolster the VRA's constitutionality in the short- and long-term.

The Justice Department should use the pocket trigger to ameliorate the covered versus noncovered jurisdiction distinction--the "differentiation problem"--highlighted by Justice Kennedy at the NAMUDNO oral argument. (24) If and when the Court invalidates section 5, the pocket trigger can perform triage, creating a deterrent effect and bailing-in jurisdictions that engage in racial discrimination in voting.

Because the pocket trigger lacks many of section 5's alleged constitutional infirmities, it can serve as a model for a modern Voting Rights Act. Given its constitutional trigger, targeted preclearance, and flexible bailout, section 3 is more congruent and proportional than section 5. Quite simply, it is far more likely to survive the Supreme Court.

Additionally, the pocket trigger replaces a static preclearance regime with a dynamic one. In its youth, the coverage formula was defined by revision and experimentation. The 1970 and 1975 reauthorizations modified the coverage formula's two proxies for discrimination by updating election dates and adding protections for language minorities. The original bailout process was used more frequently, given that it permitted a covered jurisdiction to bail out through a showing that it had not used an unlawful test or device. Frozen in time since 1975, the contemporary coverage formula fights yesterday's problems. Through iterative litigation, the pocket trigger can establish a dynamic preclearance regime, targeting today's constitutional violators. Indeed, the pocket trigger enhances the Act's impact, creating additional incentives to bring suit. And by transferring coverage determinations from Congress to the courts, the pocket trigger empowers minority communities to bargain with and target those jurisdictions they determine should be bailed-in.

If Congress decides to revise the pocket trigger, this Note proposes potential amendments. For example, Congress could decouple section 3 from its constitutional trigger, predicating bail-in on a finding of discriminatory effect. Similarly, Congress could specify that a finding of discriminatory effect in a redistricting plan triggered coverage. Although an enhancement of section 3 may ease litigation, Congress should be wary of overstretching and inviting the Court's scrutiny yet again.

This Note is organized as follows. Part I explains the debate over section 5's constitutionality and the Court's recent decision in NAMUDNO. Part II examines the pocket trigger, telling the story of several bailed-in jurisdictions. Part III demonstrates why the pocket trigger may be able to save section 5, or, alternatively, how it can reduce the collateral damage if the Court invalidates it. Part IV argues that the pocket trigger is a desirable replacement for section 5 in a post-NAMUDNO II world because it is likely to survive constitutional scrutiny and effectively targets contemporary racial discrimination. And in Part V, this Note concludes by discussing ways the pocket trigger could be amended.

1. THE CONSTITUTIONAL CONTROVERSY OVER SECTION 5

   "[D]esigned by Congress to banish the blight of racial discrimination in voting," (25) section 5 requires that certain "covered jurisdictions" (26) preclear all voting changes with the Attorney General or the United States District Court for the District of Columbia (D.D.C.). (27) Section 4 contains the Act's coverage formula and bailout provision. Under section 4(b), a state or political subdivision is a covered jurisdiction if during the 1964, 1968, or 1972 presidential election it 1) maintained an illegal "test or device," (28) such as a literacy test, and z) had voter turnout below fifty percent. (29) Under section 4(a), these covered jurisdictions can "bail out" of the Act's coverage by showing that, inter alia, they have complied with the VRA for the previous ten years. (30) Although the coverage formula and bailout process have changed since 1965, the structure of the original Act remains intact.

   Enacted as a temporary provision, section 5 has been reauthorized four times: in 1970, 1975, 1982, and 2006. (31) The current version expires in 2031. (32) Section 2, in contrast, is the Act's permanent and nationwide prohibition against racial discrimination in voting. (33) Section 2 functions as the Act's enforcement provision in both covered and noncovered jurisdictions.

   As Congress's most "inventive" (34) enforcement of the Fifteenth Amendment, "[t]he historic accomplishments of the Voting Rights Act are undeniable." (35) For...