The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance

Article excerpt

NOTE CONTENTS

INTRODUCTION

  I. THE CONSTITUTIONAL CONTROVERSY OVER SECTION 5
     A. Katzenbach vs. Boerne
     B. NAMUDNO

 II. THE POCKET TRIGGER
     A. Bailed-in Jurisdictions
     B. Lessons Learned from Pocket Trigger Litigation

III. STOPPING NAMUDNO II
     A. Saving Section 5 from the Court
     B. Responding to NAMUDNO II

 IV. A MODERN VOTING RIGHTS ACT
     A. Surviving Constitutional Scrutiny
        1. Boerne Step One
        2. Boerne Step Two
        3. Boerne Step Three
           a. From Coverage Formula to Coverage Mechanism
           b. Targeted Preclearance
           c. Section 3 Coverage Is Both Permanent and Temporary
     B. Dynamic Preclearance
        1. Frozen Preclearance: A History of Coverage and Bailout
        2. Toward a New Coverage Regime
     C. The Vanguard of Voting Rights

V. AMENDING THE POCKET TRIGGER

CONCLUSION

INTRODUCTION

Section 5 of the Voting Rights Act (VRA) (1) is living on borrowed time. Originally enacted to overcome "nearly a century of widespread resistance to the Fifteenth Amendment," (2) section 5 requires certain "covered jurisdictions" to preclear all voting changes with federal authorities. Over the course of four decades, the VRA abolished Jim Crow and empowered minority voters. This resounding success has led some to question whether section 5 has created a world in which its protections are no longer constitutional. In 1997, the Supreme Court amplified these concerns by limiting Congress's Fourteenth Amendment enforcement authority in City of Boerne v. Flores. (3) When section 5 was reauthorized in 2006, (4) commentators speculated whether the Court would invalidate one of the crown jewels of the civil rights movement. (5)

In Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO), (6) the Court made clear that section 5 was constitutionally suspect. NAMUDNO, a Texas water district created to fund infrastructure for a housing development, sought a statutory exemption from the Act's preclearance requirements. In the alternative, NAMUDNO brought a constitutional challenge, claiming that the VRA impermissibly infringed upon state sovereignty. At oral argument, the Justices lambasted the Justice Department and NAACP advocates. (7) Justice Kennedy, in particular, focused on the Act's coverage formula, questioning whether Congress justified section 5's "differentiation between the States." (8) Even more telling, the Justices asked how the case could be resolved without reaching the constitutional question. (9)

When the decision was announced, however, there were no grand pronouncements on race, voting rights, or federalism. Invoking the constitutional avoidance doctrine, Chief Justice Roberts, writing for an eight Justice majority, held only that "all political subdivisions--not only [counties and parishes]--are eligible to file a bailout suit." (10) Instead of invalidating section 5, the Court granted NAMUDNO an opportunity to "bail out" of the Act's coverage. (11)

The narrow statutory ruling seemed contrived, surprising many in the academy and the civil rights community. (12) Some interpreted the Court's hesitation as a sign that section 5 was too important to strike down. (13) Others viewed it as "a warning to Congress that it needs to reconsider section 5, and shore it up, if it can, with a new formula for coverage." (14)

Another constitutional challenge is inevitable, and supporters of a robust Voting Rights Act cannot presume the Court will blink again. The implausibility of the Court's statutory argument indicates that there were not five votes to uphold the Act. (15) Indeed, NAMUDNO "reads like a rough draft of [an] opinion ... str[iking] down Section 5." (16) One can easily imagine Chief Justice Roberts remarking that "[i]t is a sordid business, this divvying us up by [state]." (17) The absence of a reassuring concurrence further evidences section 5's future vulnerability: no Justice thought it appropriate to speak out in support of the VRA. …