The Independent View: The Prospect of Bailing-In TX and Recent Bail-In Litigation

What is the Voting Rights Act 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 Preapproved 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.

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.

In the past few years, a Wave of Section 3(c) Bail-In Suits have been filed across the Country. So far, the Municipalities of Evergreen, Alabama, and Pasadena, Texas, have been Bailed-In, and other Bail-In Suits remain Pending. But Two Circuit Court Decisions have stymied efforts to Bail-In Entire States.

In North Carolina State Conference of the NAACP v. McCrory, the Fourth Circuit Invalidated North Carolina’s notorious Post-Shelby County Voter Suppression Law. Specifically, the Fourth Circuit found that the Law had been Adopted with a Discriminatory purpose and, in so holding, Avoided deciding whether the Law had a Discriminatory Effect. Despite finding a Constitutional Violation, the Fourth Circuit relegated Section 3(c) to a Single Paragraph and Declined to Impose Bail-In on the grounds that such Remedies are “rarely used” and Unnecessary in Light of a Permanent Injunction.

The Fourth Circuit’s Cursory Rejection of Bail-In is perhaps best viewed as a Strategic Decision to make the Case less Cert-worthy. The Fourth Circuit had already Avoided a contentious Legal Question, the Appropriate Standard under Section 2 for showing Discriminatory Effects in Vote-Denial Litigation, by making an Inherently Fact-Bound Discriminatory-Intent Finding. In not Granting Bail-In, the Fourth Circuit took a significant Legal Issue of First Impression Off the Table and Reduced the Stakes of the Plaintiffs’ Victory.

The Prospect of Bail-In likely drove the Plaintiffs to emphasize and build Record Evidence for their Intentional-Discrimination Argument, as many Plaintiffs in the Pre-Shelby County Era often Relied Solely, or Primarily, on Discriminatory-Effects Claims. In other words, even though North Carolina was not Bailed-In, the Request for Section 3(c) Relief likely had a Significant Impact on the Litigation.

In Veasey v. Abbott, a Split Panel of the Fifth Circuit brought an Ignominious End to the Texas Voter ID Litigation. Back in 2011, Texas Enacted a Voter ID Law that Imposed Strict Photo-ID Requirements on Casting an In-Person Ballot. In May 2017, after Years of Litigation and a District Court Finding that the Law was Enacted with Discriminatory Intent, Texas Enacted a Revised, less Stringent Voter ID Law. The District Court subsequently Enjoined both Voter ID Laws and Ordered a Bail-In Hearing.

In its April 2018 Decision, the Fifth Circuit Reversed the Injunction and further held that Texas’s Revised Voter ID Law meant that “there is no equitable basis for subjecting Texas to ongoing federal election scrutiny under Section 3(c),” even though the District Court had not yet made that Determination.

But others, like Rick Hasen and Justin Levitt, have pointed out, the Fifth Circuit’s reasoning is Deeply Flawed: even if Texas’s Second Voter ID Law was not Enacted with Discriminatory Intent, its Original Voter ID Law had been found to be Enacted with an Unconstitutional Purpose and that alone is sufficient for Bail-In. The Fifth Circuit’s Decision in Veasey misses this Key Distinction and Encourages the very Gamesmanship that Preclearance was designed to Combat.