On Monday, the parties in the Texas redistricting case in San Antonio had their first opportunity to flesh out positions on the issues courts will have to confront in deciding whether to use the “pocket trigger” in section 3 of the Voting Rights Act to impose preclearance coverage on jurisdictions, like Texas, that are no longer subject to preclearance under section 5. A look at what they said in their briefs. The threshold question, of course, is what exactly does section 3 mean? The statutory text of section 3(c) of the Voting Rights Act says a court can order bail-in in a “proceeding instituted by the [United States] Attorney General or an aggrieved person” if it finds “that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision.” (emphasis added) The statute, however, is silent as what standards courts should use to decide when such equitable circumstances might exist.
To help answer that question, the redistricting plaintiffs pointed the San Antonio court to the multi-part test developed in 1990 by the Eastern District of Arkansas in Jeffers v. Clinton, which they described as the most developed case on section 3 to date.
Under the Jeffers test, a court considering a bail-in claim would ask – and balance the answers to – six questions:
Have the violations been persistent and repeated? Are they recent or distant in time? Are they the kinds of violations that likely would be prevented, in the future, by preclearance? Have they already been remedied by judicial decree or otherwise? How likely are they to reoccur? Do political developments, independent of this litigation, make reoccurence more or less likely?
The plaintiffs also cited Jeffers for the proposition that section 3 did not require direct proof of discriminatory intent or that discriminatory intent be the sole motivating factor for a legislative enactment.