Shelby and Section 3: Pulling the Voting Rights Act's Pocket Trigger to Protect Voting Rights after Shelby County V. Holder

Table of ContentsI. Introduction 2116II. A Brief Overview of the Voting Rights Act and § 5 Preclearance 2119A. The Voting Rights Act's Basic Structure 2119B. Section 5 and Its Development in the Supreme Court 21211. Katzenbach to Lopez: Upholding § 5 21222. NAMUDNO: Questioning § 5 21243. Shelby County: Abrogating § 5 2127III. The Pocket Trigger of § 3(c) 2129A. Section 3(c)'s Constitutionality Before Shelby County 2131B. Section 3(c)'s Constitutionality After Shelby County 2132IV. Section 3(c) Implementation in a Post-ShelbyCounty World 2134A. Presuming Purpose 2136B. Duration of Preclearance 2138C. Standard of Appellate Review 2142V. The Voting Rights Amendments Act of 2014 2146VI. Conclusion 2152I. Introduction"I have the opinion of the Court this morning in case 12-96, Shelby County versus Holder."1So began Chief Justice Roberts's announcement2 of the opinion in Shelby County v. Holder.3 Over the next seven minutes and forty-two seconds, the Chief Justice summarized the rationale and reasoning of the majority opinion,4 which had been joined by Justices Scalia, Kennedy, Thomas, and Alito.5 The Chief Justice concluded his announcement with the Court's ruling:When taking such extraordinary steps as subjecting state legislation to preclearance in Washington and applying that regime only to some disfavored states, Congress must ensure that the legislation it passes speaks to current conditions. The coverage formula, unchanged for 40 years plainly does not do so and therefore we have no choice but to find that it violates the constitution.6The dissent from Justice Ginsburg that followed the Chief Justice was the first voice in a chorus of criticism that rained down on the Court after its decision.7 Some of the criticism highlighted factual errors in the Court's understanding of the Voting Rights Act (VRA):8 one observer criticized the majority for "[striking] down a statute that did not exist,"9 while another wrote that "all three reasons Shelby County gives for the record's inadequacy are deeply puzzling."10 Other criticisms focused on the ruling's effects: President Obama expressed deep disappointment in the ruling, asserting that it "upset0 decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent."11 Attorney General Eric Holder called Shelby County "a serious setback for voting rights."12 Nearly every critique of the Court's ruling also looked to the future and how the federal government could use the undisturbed portions of the Voting Rights Act to continue protecting the franchise.13 The need for continued federal protections became apparent within hours of the Court's decision as states formerly covered by § 5 began to implement new voting-related legislation.14One of those portions of the Voting Rights Act that remained untouched by Shelby County is § 3(c)15-the "bail-in" or "pocket trigger" provision.16 Section 3(c) authorizes a court presiding over a successful voting rights suit to impose a preclearance regime on the defendant jurisdiction, thus requiring the jurisdiction's subsequent voting-related changes to be approved by the court before they can go into effect.17 In the wake of Shelby County, Attorney General Holder specifically mentioned § 3(c) as one of the tools the Department of Justice would use to continue protecting voting rights. …