When the Supreme Court rejected the Voting Rights Act Preclearance formula, removing the states from review of local state laws affecting the voting process, many have turned to the courts to overturn those state laws.
Another solution can be found through an examination of the VRA’s most obscure provision, Section 3.
Bail-In
Section 3(c) contains a "bail-in" or "pocket trigger" process by which jurisdictions that fall outside the coverage formula of Section 4(b) may become subject to preclearance. Under this provision, if a jurisdiction has racially discriminated against voters in violation of the Fourteenth or Fifteenth Amendments, a court may order the jurisdiction to have future changes to its election laws pre-approved by the federal government. Because courts have interpreted the Fourteenth and Fifteenth Amendments to prohibit only intentional discrimination, a court may bail in a jurisdiction only if the plaintiff proves that the jurisdiction enacted or operated a voting practice to purposely discriminate.
Section 3(c) contains its own preclearance language and differs from Section 5 preclearance in several ways. Unlike Section 5 preclearance, which applies to a covered jurisdiction until such time as the jurisdiction may bail-out of coverage under Section 4(a), bailed-in jurisdictions remain subject to preclearance for as long as the court orders. Moreover, the court may require the jurisdiction to preclear only particular types of voting changes. For example, the bail-in of New Mexico in 1984 applied for 10 years and required preclearance of only redistricting plans. This differs from Section 5 preclearance, which requires a covered jurisdiction to preclear all of its voting changes.
During the Act's early history, Section 3(c) was little used; no jurisdictions were bailed in until 1975. Between 1975 and 2013, 18 jurisdictions were bailed in, including 16 local governments and the states of Arkansas and New Mexico. Although the Supreme Court held the Section 4(b) coverage formula unconstitutional in Shelby County v. Holder (2013), it did not hold Section 3(c) unconstitutional. Therefore, jurisdictions may continue to be bailed-in and subjected to Section 3(c) preclearance. In the months following Shelby County, courts began to consider requests by the Attorney General and other plaintiffs to bail in the states of Texas and North Carolina, and in January 2014 a federal court bailed in Evergreen, Alabama.
A more narrow bail-in process pertaining to federal observer certification is prescribed in Section 3(a). Under this provision, a federal court may certify a non-covered jurisdiction to receive federal observers if the court determines that the jurisdiction violated the voting rights guaranteed by the Fourteenth or Fifteenth Amendments. Jurisdictions certified to receive federal observers under Section 3(a) are not subject to preclearance.
Section 3 does hold some promise. Under its rules, if plaintiffs show that a state or jurisdiction has intentionally discriminated, they can ask the judge to require the state or county to get permission from the feds before new elections laws go into effect. Groups in three states have asked judges to make such a requirement and the Department of Justice has voiced its support. So, while prior to June’s ruling, Section 3 was relatively obscure even among legal experts, it’s now in the spotlight.
The Department of Justice (DOJ) announced it would try to use Section 3 to bring more states back under preclearance:
- In an ongoing Texas redistricting case, civil rights groups and the DOJ have requested that the court consider requiring Texas to get “bailed in,” meaning it will have to submit to preclearance.
- A Native American tribal group in Alaska has made the same request after ballots were repeatedly not made available in tribal languages.
- There’s a case in Montana calling for preclearance.
- Plaintiffs are bringing a lawsuit against North Carolina’s new voting laws and have asked for the state to be bailed in.
Still, Section 3 has only been invoked 18 times in the last four decades. Judges have usually applied it to counties or school districts. Only two states, Arkansas and New Mexico, have ever been “bailed in.” Currently, only three counties in the whole country are required to seek preclearance under Section 3, all of them relatively rural. And almost all of these Section 3 cases have focused on redistricting, rather than on the more creative types of voter restrictions we’ve seen recently.
Because of the lack of relevant case law, much about how Section 3 can be made to work remains unknown. Whether Section 3 can become a potent tool for protecting voter rights depends heavily on the answers to these three questions:
1. How easy will it be to invoke Section3?
In order to even consider “bailing in” a jurisdiction, a court must first determine that the jurisdiction intentionally discriminated against minority voters. In some cases, jurisdictions have submitted to preclearance as part of an agreement, but in the current political climate with so many states fighting, in effect, for their right to discriminate, a mutual agreement is unlikely.
Proving intentional discrimination has been difficult. “The case has to be pretty egregious,” says Loyal University law professor Justin Levitt, who specializes in redistricting law. “It’s pretty unusual to find intentional discrimination, period.” Section 5 allowed the Department of Justice to nix a law because it had a discriminatory effect; for instance voter ID laws often got denied because they presented more obstacles to black voters than to white voters. Furthermore, the burden of proof fell on the states, they had to explain why their laws weren’t discriminating. But Section 3 shifts the burden to voting rights advocates, who must show that a jurisdiction actually meant to make it disproportionately harder for minorities to vote. Proving such intent often requires smoking guns, like emails or recordings of lawmakers or elections officials specifying their desire to discriminate against minority voters. Most of the time, civil rights lawyers have trouble finding enough evidence, especially because just trying to gain partisan advantage, i.e. to make it harder for Democrats to win, doesn’t by itself count as such discrimination.
However, last year, in a preclearance case, the D.C. District Court found that two of Texas’s three redistricting maps not only had a discriminatory effect but that lawmakers had intentionally tried to decrease the weight of black and Latino votes. The maps got rejected, but in the course of the case, a number of damning emails surfaced, including one that discussed the “Optimal Hispanic Republican District” — a district which had a high Hispanic population but a low percent of eligible Hispanic voters. Texas had gotten in similar hot water seven years ago, after Congressman Tom Delay tried to redraw the state’s district maps in 2003. The Supreme Court, ruling on the maps in 2006, judged one of the districts discriminatory. “In essence the State took away the Latinos’ opportunity because Latinos were about to exercise it,” stated the court’s majority opinion.
Because the state was found to have intentionally discriminated last year, and has such a terrible history, Levitt says Texas presents the perfect case for testing the floor of Section 3. He jokes that it’s the reverse of Liza Minnelli’s famous song “New York, New York.” “If you can make the case for discrimination anywhere, you can make it there,” he says of Texas.
Texas’ maps never went into effect, so there’s a chance the courts will throw out any case asking that the state be bailed in because of them. However, there’s still the state’s notoriously restrictive voter ID law, which presents enormous hurdles to voters who don’t already have the required IDs. Levitt expects that law will also provide an opening for a Section 3 case. This lawsuit has already been filed.
Even if the courts do decide to force Texas to submit new elections laws for preclearance, that will only show that Section 3 can be applied somewhere. It will still remain unclear whether judges will be strict when it comes to other states. After Texas’s experience, lawmakers in other states have probably been more careful about spelling out their intentions in email or otherwise. Most experts still expect making the case for Section 3 prosecution will be difficult.
2. How broad will the preclearance rules be?
Once a judge has determined that a jurisdiction did indeed intend to discriminate, he or she can then choose to make a preclearance requirement. The judges, however, have tremendous discretion. They can write a narrow requirement, for instance decreeing that a state that’s discriminating in its redistricting maps must have its maps precleared the next time around. Or they can fashion a requirement that resembles Section 5, requiring the state to submit all election law changes to the Department of Justice for the next 50 years.
In the past, most “bailed-in” jurisdictions faced requirements that were fairly narrow and dealt specifically with redistricting cases. But that was when the worst-offending states and counties were already covered under Section 5. When states with long histories of voter discrimination appear in court facing Section 3 issues, judges may be more inclined to require more laws get precleared. They could also require that should such a state start a voter purge or overhaul a voter ID law, such specific changes must undergo preclearance.
There’s already some precedent for such pre-emptive measures. When Arkansas was bailed-in in 1990, the case dealt mostly with redistricting. However, at the time, plaintiffs specifically noted that certain counties were changing elections law to require a majority vote instead of a plurality vote. There was obviously some racist motivation for the changes; as minority populations grew, some parts of the state saw the white vote split and a black candidate win office. Requiring a majority gave the white vote a chance to consolidate under one candidate and was deemed intentionally discriminatory.
So the judge in the case ruled that any jurisdictions in Arkansas that passed such a law would have to submit it for preclearance. We could see similar requirements going forward. For instance, if North Carolina’s voter ID law were to be deemed intentionally discriminatory, the judge could also rule that the state would have to get any voter purges precleared as well.
3. Will Congress give Section 3 sharper teeth?
Currently, Section 3 is no replacement for Section 5, it’s simply one of the only remaining tools available. But a number of legal experts have pointed to the potential for expanding Section 3 to make it more useful for preventing voter discrimination. New York University law professor Richard Pildes has argued that Congress should amend Section 3 to cover jurisdictions that violate the Motor Voter Registration Act and the Help America Vote Act, as well as violations of Section 2 of the Voting Rights Act, which prohibits laws that have a discriminatory effect. As Pildes notes, by expanding Section 3, Congressional Republicans could both undo a bit of the GOP reputation as the party of voter suppression but they wouldn’t have to actually name any states.
Travis Crum, a Yale Law School graduate, wrote a piece in the Yale Law Journal arguing that if Section 3 were broadened, it could actually have some advantages over Section 5. After all, the list of states covered under Section 5 was quite static. Section 3 allows for states to come under preclearance as they pass problematic laws, and would allow local jurisdictions, which often escape lawsuits because of costs, to come under similar scrutiny.
The Justice Department and civil rights groups should build off of the handful of successful bail-ins and redefine the preclearance regime through litigation. Second, the pocket trigger provides a model for a revised VRA. The pocket trigger is more likely to survive the congruence and proportionality test because it replaces an outdated coverage formula with a perfectly tailored coverage mechanism, a constitutional trigger. It also sidesteps the political difficulties in designing a new coverage formula. The pocket trigger has the potential to create dynamic preclearance: a flexible coverage regime that utilizes targeted preclearance and sunset dates. By proposing possible amendments to the pocket trigger, such as adding an effects test or delineating certain violations that automatically trigger preclearance.
I have posted articles about my solution to the preclearance issue. Make it part of the Census.
Every ten years, all states are put on preclearance, then given (90 days or 120 days) to file their last 10 years of voting records. After review, some states we be bailed-out and some will stay bailed-in. After this process, the states can file their redistricting plans.
For this to work, the formula that was rejected by the Supreme Court needs to be updated and written to handle any future technology that will affect the voting process.
NYC Wins When Everyone Can Vote! Michael H. Drucker
Technorati Tag in Del.icio.us 
No comments:
Post a Comment