The Independent View: The Voting Rights Act is in Tatters

Today, the Voting Rights Act that King helped to push through Congress is in Tatters.

To Stop Voting Discrimination, the Voting Rights Act created Strong Remedies applicable to Jurisdictions with a Long History of Flouting Constitutional Guarantees.

Such Jurisdictions would have to “Preclear” New Voting Changes and Prove they were Nondiscriminatory before Enforcing Them.

In 2013, in a 5-4 Ruling in Shelby County v. Holder, the Supreme Court Eliminated this Critical Remedy. Claiming that things had Changed, Chief Justice John G. Roberts Jr. insisted that the Voting Rights Act’s Coverage Formula was now Unconstitutional.

Here is how a would change that:

1. Develop a New Coverage Formula.

Then take the Process out of the hands of Congress by making it Part of the Census:

2. As the Census starts, put All States on Preclearance.

3. Then the States fill with the DOJ's Voting Rights Division their last 10 years of Voting History.

4. Then after Review, some States will Stay on Preclearance and some would be Removed.

5. Then New Political Maps are Drawn, with those States on Preclearance would have to Pass Voting Rights Division Review.

6. After Five Years, States on Preclearance can Request a New Review.

The Bail-In Process will still apply to those States Not on Preclearance.

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. 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.