In the wake of the Supreme Court’s Decision in Shelby County, Voting Rights Advocates should be cautiously Optimistic that the Voting Rights Act’s (VRA) “Bail-In” Process, left Intact by that Decision, can fill the Void, left Open by the Court’s Rejection of the Preclearance Coverage Formula. Although Statutory Change may still be Possible and Desirable, immediate attention should be Paid to Provisions currently Still in effect and Capable of instant Application. The Bail-In Provision satisfies the Constitutional Requirements laid out by the Shelby County Court, is immediately Available, and, if Utilized, represents the Remedial Option closest to the previously Utilized SectionSection 5, Preclearance Structure.
With Statutory Change under H.R.1 uncertain, the Logical Alternative is to look for Increased Opportunities to Enforce Provisions of the VRA Unaffected by the Court’s Ruling. The Court, while striking down the Coverage Formula of the Act, left intact the Section 5 Preclearance Requirement. It additionally left untouched a lesser known Provision contained in Section 3(c) of the Act, sometimes called the “Bail-In” Procedure or the “Pocket Trigger” Provision.
The Bail-In Process allows a Court, upon finding a Violation of the Fourteenth or Fifteenth Amendment, to Impose a System similar to the Section 5 Preclearance Structure on the Offending Jurisdiction. The Bail-In Procedure has been Infrequently examined by both Courts and Scholars. Only one Reported cCse exists Analyzing the Standards for Bailing-In a Jurisdiction.
Advantages and Disadvantages of Bail-in Litigation
The Bail-In Procedure’s primary Advantage is that it provides a nearly Identical Structure to the Preclearance Model under Section 5, and at the same time, is likely to Pass Constitutional Scrutiny. In particular, the Bail-In Procedure satisfies the Shelby County Court’s Chief concern with the Section 4 Formula: Respect for the Equal Dignity of the States. According to the Court, States, like People, have the Right to be Treated by the Federal Government Equally. Just as the Federal Government may Not Single-Out Classes of Persons for Disfavored Treatment, it similarly may Not make Distinctions amongst the States. Section 5 intrudes on this Equality Principle by forcing certain sSates to “beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own.”
The Limited Number of States and Counties, that Section 4 Formula reached, Nine States in Full and various other Counties, further Highlighted the lack of Equality between States under the Law. The Court acknowledged that it had previously Upheld this differing Treatment because of “[t]he ‘blight of racial discrimination in voting’ [that] had ‘infected the electoral process in parts of our country for nearly a century.’”. However, the Court found that because the Formula had remained Static, — Subjecting States to Preclearance based on Voter Registration Data from previous Decades, the Formula was No longer cCnstitutional. But, the Court said Congress can create a New Formula, that they did in 2021, under H.R.4 Passed by the House and waiting for a Senate Vote.
The Section 3 Bail-In Provision does Not rely on the Section 4 Formula, or any other Legislative Calculation. Rather, Jurisdictions become Subject to Preclearance under Section 3, upon an Individualized Determination by a Court, and only after the Jurisdiction has been found in Violation of the Fourteenth or Fifteenth Amendment. In this way, the Section 3 Bail-In Process is more likely to satisfy Constitutional Concerns. A Jurisdiction Bailed-In via Section 3 can hardly Complain it is Not being Treated Equally by the Federal Government, since it will have had an Opportunity to Independently Litigate before a Neutral Arbiter whether it should be subject to Preclearance.
Further, if a Jurisdiction is Bailed-In, its Future Voting Changes will be Submitted to the Court imposing Preclearance. This too is different than Section 5, where Jurisdictions were Forced to choose between the Department of Justice (DOJ) and the District of Columbia District Court. The choice between submitting Changes to Two Different Federal Decision makers, both located in the District of Columbia, has been a point of Contention since Section 5’s Enactment. The Ability of States to Litigate their Section 3 Preclearance Requests in the Federal Court located in their State cures this Concern.
The Section 3 Process also permits Temporal Limitations to be placed on the Review Process. Courts can Order review for only a Limited Duration of Time. This is unlike the Indefinite Section 5 Process which can only be Terminated if a Jurisdiction Institutes its own Suit, requesting it No Longer be subject to Review. This Strengthens the Argument that the Bail-In Process satisfies Constitutional Requirements by Treating sSates with Equal Dignity.
There are still a Number of Hurdles to Increased Section 3 Litigation Post-Shelby County. The most Significant is establishing a Violation of the Fourteenth or Fifteenth Amendment. For Section 3 to Apply, it is Insufficient that a Jurisdiction be found to have Violated the VRA or another Voting Rights Statute. Rather, a Specific finding must be made that the Jurisdiction Violated the Constitution. This is a Demanding Requirement, and will likely necessitate Proof that a Jurisdiction intended to Discriminate on the Basis of Race. The Section 3 Process is also at the Mercy of the Federal Judiciary. Litigants will have to Convince a Federal Judge, not only that a Violation has occurred, but also that the Court should require the Jurisdiction to Submit Future Voting Changes to the Court. Again, this is a Challenging Burden for Litigants, since some Judges will prefer to Stay-Out of State Political Affairs.
However, even with these Challenges in mind, it is Clear the Bail-In Process represents the Remedial Structure most similar to the previously Enforced Section 5 Process, and, as we will see, provides Advantages over other VRA Alternatives.
Bail-in Suits Historically
The Bail-In Procedure has been Utilized sparingly since the VRA’s Adoption. Today, with Section 4 Eliminated, it is important to observe any Trends in the Limited number of Bail-In Cases available, in order to determine Section 3’s Reach.
Since the VRA’s Adoption, Eighteen Jurisdictions have been Bailed-In. Two of the Bail-Ins were for Preclearance of an entire State, Arkansas and New Mexico, while the Rest were Individual Counties or Cities. No time Period stands out for Bail-Iins. The First Two Bail-Ins came in 1979. The most recent came in 2006. The rest are spread out fairly consistently over the remaining years. No area of the Country dominates the List either. Bailed-In Jurisdictions come from All Regions, not just the Deep South.
Jurisdictions Bailed-In, have Not been subject to the Preclearance Requirement indefinitely. They are often only subject to the Requirement for a certain Category of Election Law Changes, and only for a set period of Time. For example, New Mexico was Bailed-In after its 1980 Redistricting plan was found Unconstitutional. The State was subject to the Preclearance Requirement for the Next Decade, and then Removed from the Preclearance Roster. Jurisdictions have also consented to the Bail-In process by means of a Consent Degree in order to avoid Litigation.
In viewing the Bailed-In Jurisdictions, one cannot help but Notice the List satisfies many of the concerns raised by the Shelby County Court. The Jurisdictions were Bailed-In at different time periods and by different Courts, establishing the dynamic nature of Section 3 compared to the more Stagnant Section 4. The Jurisdictions are Geographically Diverse, alleviating concerns regarding the Dignity of each State, and the Characterization that Section 4 singled out the South. Similarly, the Fact that Jurisdictions have consented to the Bail-In Mechanism in lieu of Trial Demonstrates a Benefit to States engaged in Protracted Litigation. Lastly, the Limited duration that Jurisdictions are subject to Preclearance eases the Harsh Impact of the Requirement.
Voting Rights Advocates should remain cautiously Optimistic that Section 3 can fill the Void left open by the Court’s Rejection of Section 4. Although Statutory Change may still be possible and desirable, immediate attention should be paid to Provisions currently in effect and capable of instant Application. The Bail-In Provision satisfies the Constitutional Requirements laid out by the Shelby County Court, is immediately Available, and, if Utilized, represents the Remedial Option closest to the previously Utilized Section 5 Preclearance Structure.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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