Following Shelby County v. Holder, civil rights advocates are searching for new strategies to protect voting rights. As I argued in my 2010 Yale Law Journal Note, section 3 of the Voting Rights Act provides a roadmap for the future. 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. Designed to trigger coverage in “pockets of discrimination” missed by the coverage formula, section 3 has been used to bail-in over a dozen jurisdictions, including Arkansas, New Mexico, and Los Angeles County. Although the pocket trigger has been historically overshadowed by section 5, it has garnered recent attention as a potential replacement for the coverage formula (see here, here, here, and here). So what does section 3 have to offer? First and foremost, it’s already the law of the land. With no need for lengthy hearings and legislative maneuvering, civil rights groups and the Justice Department can move expeditiously to reconstruct the preclearance regime.
Indeed, civil rights groups moved last week to bail-in Texas based on findings of intentional discrimination in its 2011 redistricting plans. Second, because section 3 utilizes a coveragemechanism, it sidesteps the “equal sovereignty of the States” problem inherent in any coverage formula. Third, the pocket trigger doesn’t single out jurisdictions using decades-old proxies. Rather, section 3 perfectly tailors preclearance to “current conditions,” namely contemporary constitutional violations. And finally, the pocket trigger relies on judges—not Congress—to select jurisdictions for coverage.
The pocket trigger also reduces preclearance’s federalism costs. Courts have often required jurisdictions to preclear only certain problematic changes. Arkansas, for example, was required to preclear majority-vote requirements. Courts have further tailored section 3 preclearance by setting temporal limitations. Instead of mandating preclearance for a twenty-five year period, courts have fashioned more limited sunset dates—often imposing preclearance for a decade.
To be sure, the current bail-in mechanism has its limitations. Establishing a constitutional violation is no easy task, and bail-in litigation will stretch the resources of civil rights groups. The pocket trigger, moreover, forces civil rights groups and the Justice Department to go on the offensive; though once a jurisdiction is bailed-in, the balance of time and inertia would flip back in favor of minority voters.
Full Article: “An Effects-Test Pocket Trigger?” | Election Law Blog.