07/03/13: After the ruling on the Voting Rights Act

This op-ed appeared in The Virginian-Pilot on the date shown.

WHAT a difference a day makes.

Last week, the U.S. Department of Justice announced it had reached an agreement with Hanover County that allowed the Virginia locality to no longer be subject to the preclearance requirement of the Voting Rights Act. Hanover is perhaps best known to Hampton Roads residents as the home of the Kings Dominion theme park.

The next day, the U.S. Supreme Court invalidated the formula used to determine which parts of the country are covered by the preclearance rules. Without a formula, there is no preclearance, so the court, while ruling only on the formula contained in Section 4, effectively neutered the preclearance requirements of Section 5.

The ruling was not unexpected. The court had signaled to Congress four years ago that it wasn’t happy with the formula.

In Northwest Austin Municipal Utility District v. Holder, the court complained that the data used for calculating the coverage formula was too old — it uses voting information from 1972 — “and there is considerable evidence that it fails to account for current political conditions.” Our dysfunctional Congress failed to heed the court’s warning then, and I certainly don’t expect Congress to do so now.

What the immediate future holds is unclear. Some localities will continue to submit their plans to DOJ for preclearance, while others will use the court’s ruling to implement plans that had previously been rejected.

The latter might very well find themselves in violation of Section 2 of the VRA, which applies nationwide and prohibits voting practices or procedures that discriminate. The problem with Section 2 is that it is an after-the-fact provision. In other words, aggrieved parties can sue but only after the triggering event has taken place.

But they may also run afoul of Section 3. With all eyes on Sections 4 and 5, many miss the “bail-in” procedures outlined in Section 3 of the VRA.

Often referred to as a “pocket trigger,” Section 3 is designed to place under preclearance those localities that would otherwise not be covered by the formula. A 2010 Yale Law Journal article, written in the wake of Northwest Austin, declares that Section 3 “authorizes courts to impose preclearance in response to violations of the Fourteenth and Fifteenth Amendments.”

The imposition occurs after the court finds “intentional discrimination.” Further, “The preclearance language of Section 3 mirrors Section 5.”

The bar for a Section 3 trigger is higher than that of the now-invalid Section 4 coverage formula, which may explain why it has been used so sparingly. Two states, six counties and one city have been bailed-in since 1975. These jurisdictions remain subject to the preclearance rules.

The Section 3 bail-ins are different from their Section 4 counterparts, though. Most of those bailed-in have done so via consent decrees, wherein the parties agree to certain future activities.

As such, Section 3 bail-ins have been targeted, requiring only specific voting changes be submitted to DOJ for pre-clearance. In contrast, Section 5’s preclearance rules require submission of all voting changes for preclearance.

Those covered under the formula of Section 4 remain covered unless they, like Hanover County, pursue a bailout. Section 3 jurisdictions’ consent decrees have had sunset provisions.

Section 3 also differs from Sections 4 and 5 in another important way: It is permanent and not dependent upon Congress’ extension.

The provisions of Section 3 provide the Department of Justice with a continuing tool to combat voter discrimination wherever it may occur.

In the end, perhaps a day made no difference at all.