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

Abstract

Following NAMUDNO, the search is on for a way to save Section 5 of the Voting Rights Act. This Note offers a solution through an examination of the VRA’s most obscure provision: Section 3. Commonly called the bail-in mechanism or the pocket trigger, Section 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance.

This Note makes a two-part argument. First, the pocket trigger should be used to alleviate the NAMUDNO Court’s anxiety over the coverage formula’s differential treatment of the states. The Justice Department and civil rights groups should build off the handful of successful bail-ins and redefine the preclearance regime through litigation.

Second, the pocket trigger serves as a model for a revised VRA. The pocket trigger is more likely to survive the congruence and proportionality test because it replaces an outdated coverage formula with a perfectly tailored coverage mechanism - a constitutional trigger. It also sidesteps the political difficulties in designing a new coverage formula. The pocket trigger has the potential to create dynamic preclearance: A flexible coverage regime that utilizes targeted preclearance and sunset dates. This Note concludes by proposing possible amendments to the pocket trigger, such as adding an effects test or delineating certain violations which automatically trigger preclearance.

Keywords: Voting Rights Act, pocket trigger, election law, civil rights