Preclearance Without Statutory Change: Bail-In Suits Post-Shelby County

Abstract

This short piece analyzes the potential for bail-in suits under Section 3 of the Voting Rights Act, following the Supreme Court's decision in Shelby County v. Holder. The bail-in process allows a court, upon finding a voting rights violation of the Fourteenth or Fifteenth amendments, to impose a system similar to the Section 5 preclearance structure on offending states. This piece argues that voting rights advocates should be cautiously optimistic that Section 3 can fill the void left by the Court's decision to strike down the Section 4 preclearance formula. It contends the bail-in provision is superior to other statutory and policy alternatives for a number of reasons, namely that it satisfies the constitutional requirements laid out by the Shelby County Court for supervisory voting legislation; is immediately available (eliminating the need for statutory change); and, if utilized, represents the remedial option closest to the previously enforced Section 5 preclearance structure.

Keywords: voting, voting rights, voting rights act, supreme court, constitution, election law