Academic journal article Iowa Law Review

Devising a Standard for Section 3: Post-Shelby County Voting Rights Litigation

Academic journal article Iowa Law Review

Devising a Standard for Section 3: Post-Shelby County Voting Rights Litigation

Article excerpt

I. Introduction

For nearly 50 years, the federal voting rights enforcement regime centered on section 5 of the Voting Rights Act of 1965 (the "VRA").1 Under this provision, the government monitored certain jurisdictions with a history of voting rights violations by requiring them to seek preapproval from the federal government for any changes in their voting practices.2 3 4 5 In 2013, however, the Court's decision in Shelby County v. Holder effectively dismantled this "preclearance" element of the enforcement regime when it struck down section 4(b) of the VRA, which provided the formula for determining which jurisdictions had to seek approval for voting changes under section 5.3 In other words, without section 4(b), no jurisdictions are bound by section 5's preclearance requirements.

In light of the Shelby County ruling, voting rights plaintiffs and activists have turned to section 3(c) of the VRA. This provision enables courts to require jurisdictions to seek approval for future voting changes as a remedy for previous voting rights violations.4 Accordingly, this Note examines section 3(c) as a solution to the voting rights enforcement problems that the Court's ruling in Shelby County created. Part II discusses four major provisions of the VRA and the Court's decision in Shelby County, followed by a discussion of the Court's Fourteenth and Fifteenth Amendment jurisprudence in the context of voting rights. Part III examines the standard that other courts have applied in determining when jurisdictions' behavior triggers the section 3(c) remedy. Part IV argues that an intentional discrimination standard is too demanding, and considering the Supreme Court's past case law and Congress's intent, recommends an alternative standard. Finally, Part V concludes by arguing that courts should look beyond evidence of intentional discrimination to determine when jurisdictions' behavior triggers section 3(c).

II. The Voting Rights Act and the Constitution

In the wake of Shelby County, commentators offered several ways to potentially reinvigorate the voting rights enforcement regime.5 First, it is important to point out that in holding section 4(b) unconstitutional, the Court left intact section 5.6 As a result, Congress has the option to "draft another formula based on current conditions"7 to simply reactivate section 5. Second, rather than wait for Congress to act, several commentators contend that nongovernmental organizations have the capacity and motivation to fulfill the monitoring and information-gathering functions of section 5.8 However, relying on these organizations alone to monitor jurisdictions would require substantial litigation to remedy VRA and constitutional violations on a case-by-case basis. Thus, a final solution, and as this Note argues perhaps the most promising, is to monitor jurisdictions that behave unlawfully through the preclearance remedy contained in section 3 of the VRA.9

This Part briefly introduces the provisions of the VRA that are central to this Note, followed by a discussion of the Court's decision in Shelby County. Finally, this Part examines the legal standards applied in voting rights cases to determine if and when Fourteenth or Fifteenth Amendment violations have occurred.

A. The Voting Rights Act: Relevant Provisions and History

Despite the ratification of the Fifteenth Amendment following the Civil War, African Americans, particularly in the South, continued to face significant barriers to exercising their right to vote long into the 20th century.10 On March 15, 1965, in response to the "systematic and ingenious discrimination" that African Americans faced at the ballot box, President Lyndon Johnson delivered a speech before Congress calling for "[e]very American citizen [to] have an equal right to vote."11 He introduced a bill intended to "ensure the right to vote when local officials are determined to deny it."12 In the following months, Congress considered this bill, known today as the Voting Rights Act of 1965, and on August 6, 1965, President Johnson recognized "a victory for the freedom of the American nation" when he signed the VRA into law. …

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