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

Devising a Standard for Section 3: Post- Shelby County Voting Rights Litigation Roseann R. Romano  ABSTRACT: In response to the Supreme Court’s decision in Shelby County v. Holder , which dismantled the modern voting rights enforcement regime by declaring section 4(b) of the Voting Rights Act (“VRA”) unconstitutional, plaintiffs in voting rights lawsuits have sought protection from a little-used provision of the VRA: section 3(c). Section 3(c) allows courts to require jurisdictions whose voting practices violate the Fourteenth or Fifteenth Amendment to submit future voting changes to a preclearance process. However, in light of little legislative history and only one instance of judicial interpretation of the provision, courts face a challenge in determining when a jurisdiction’s behavior triggers the section 3(c) remedy. Accordingly, this Note examines section 3(c) and the legal standards applied to find Fourteenth or Fifteenth Amendment violations in voting rights cases. This Note then proposes an invidious discrimination standard for determining when a jurisdiction’s voting practices trigger section 3(c). By applying this standard to two ongoing voting rights cases, this Note argues that a less burdensome standard than the intentional discrimination standard does not dramatically depart from past voting rights jurisprudence and is necessary to strengthen the voting rights enforcement regime.  J.D. Candidate, The University of Iowa College of Law, 2015; B.A., American University, 2012. I would like to thank Professor Dan Tokaji at The Ohio State University Moritz College of Law for inspiring me to write on this topic and for his advice throughout the writing process. In addition, thank you to the staff of Volumes 99 and 100 of the Iowa Law Review who were instrumental in improving this Note, particularly Luke Dawson, Amanda Beggs, and Michelle Wallace. Finally, a very special thank you to my family and friends for their unending love and support—I couldn’t have done it without you! 388 IOWA LAW REVIEW [Vol. 100:387 I. INTRODUCTION ............................................................................. 389 II. THE VOTING RIGHTS ACT AND THE CONSTITUTION .................... 389 A. T HE V OTING R IGHTS A CT : R ELEVANT P ROVISIONS AND H ISTORY ................................................................................. 390 B. SHELBY COUNTY V. HOLDER : T HE D EMISE OF S ECTION 5 ........ 393 C. F INDING C ONSTITUTIONAL V IOLATIONS IN V OTING R IGHTS C ASES ..................................................................................... 395 1. Fourteenth and Fifteenth Amendment Standards in Voting Rights ................................................................. 395 2. Precedent for Constitutional Violations in Voting Rights ............................................................................. 396 III. J EFFERS V . C LINTON : ONE COURT’S APPROACH TO SECTION 3(C) .............................................................................................. 399 IV. DEVISING A STANDARD FOR TRIGGERING SECTION 3(C) ............... 403 A. W HERE JEFFERS W ENT W RONG ................................................ 403 B. I NVIDIOUS D ISCRIMINATION : D EVISING THE P ROPER S TANDARD .............................................................................. 404 C. A PPLYING THE I NVIDIOUS D ISCRIMINATION S TANDARD ............. 405 1. The Allegations Against Texas and North Carolina ... 406 2. Triggering Section 3(c) Under the Invidious Discrimination Standard............................................... 407 D. A LTERNATIVES TO THE I NVIDIOUS D ISCRIMINATION S TANDARD .............................................................................. 408 V. CONCLUSION ................................................................................ 410 2014] DEVISING A STANDARD FOR SECTION 3 389 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 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 1. See DANIEL HAYS LOWENSTEIN ET AL., ELECTION LAW: CASES AND MATERIALS 35 (5th ed. 2012). 2. See 42 U.S.C. § 1973c (2012). 3. See Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2631 (2013). 4. See 42 U.S.C. § 1973a(c). 5 . See, e.g. , Bruce E. Cain, Moving Past Section 5: More Fingers or a New Dike? , 12 ELECTION L.J. 338, 338–40 (2013) (pointing to several options to remedy the problems created by the Court’s Shelby County decision); Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Mapping a Post- Shelby County Contingency Strategy , 123 YALE L.J. ONLINE 131, 135 (June 7, 2013) (arguing, several weeks before the Shelby County decision, that “institutional intermediaries” should play an important role in the future fight to protect voting rights); Travis Crum, Note, The Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance , 119 YALE L.J. 1992, 1997–98 (2010) (advocating, in the wake of Northwest Austin Municipal Utility District No. One v. Holder (“ NAMUDNO”) , for using section 3 of the VRA to remedy the Court’s discomfort with section 5). 390 IOWA LAW REVIEW [Vol. 100:387 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. T HE V OTING R IGHTS A CT : R ELEVANT P ROVISIONS AND H ISTORY 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 6 . Shelby Cnty. , 133 S. Ct. at 2631. 7 . Id. ; see also Christopher S. Elmendorf & Douglas M. Spencer, The Geography of Racial Stereotyping: Evidence and Implications for VRA Preclearance After Shelby County, 102 CALIF. L. REV. (forthcoming 2014), available at http://ssrn.com/sol3/papers.cfm?abstract_id=2262954 (proposing a new coverage formula based on rates of negative racial stereotyping among the states, while taking into account racially-polarized voting and the size of the minority population). 8. Charles & Fuentes-Rohwer, supra note 5, at 142; see also Heather K. Gerken & Michael S. Kang, The Institutional Turn in Election Law Scholarship , in RACE, REFORM, AND REGULATION OF THE ELECTORAL PROCESS: RECURRING PUZZLES IN AMERICAN DEMOCRACY 86, 90 (Guy-Uriel E. Charles et al. eds., 2011) (proposing a “process-oriented solution[] . . . [based on] the development of nonjudicial institutions” to reform election law generally). 9. See generally Crum, supra note 5. Crum’s Note concludes that expanded use of section 3 would survive constitutional scrutiny by more...