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The Voting Rights Act's Secret Weapon?

By Jack M. Balkin

There's a new paper up on SSRN that ought to be of interest to anyone who cares about the constitutionality of Section 5 of the Voting Rights Act. (In the interest of full disclosure, I should note that I supervised the paper, though the ideas are entirely the author's). Written by Travis Crum, it's the first sustained treatment of the "pocket trigger" or "bail-in" mechanism, a little-known provision of the Voting Rights Act that authorizes courts to subject jurisdictions that have discriminated against minority voters to the Section 5 "preclearance" process (described here).

The pocket trigger is interesting for two reasons. First, it could help protect Section 5 from constitutional invalidation when the next challenge occurs. Second, even if the Supreme Court struck down Section 5, the pocket trigger could provide a model for enacting a new Section 5 in the future.

For those who continue to think that Section 5 remains vulnerable to a constitutional challenge (an issue the Court ducked last Term), the pocket trigger might help alleviate some of the concerns the Court has raised about Section 5. Section 5 is vulnerable to constitutional challenge in large part because it covers some jurisdictions and not others . . . using a formula that dates back decades. The worry is that jurisdictions that ought to be covered are not (e.g., places with recent histories of racial discrimination that weren't included in the original formula) and that jurisdictions that should no longer be covered are still on the Section 5 list (e.g., places that discriminated in the past but look little different from non-covered jurisdictions today). Michael McDonald has suggested a proactive bailout of states that fall in the second category to address the second problem. The "pocket trigger" would address the first, pulling in bad actors that ought to be covered by Section 5 but aren't. One can imagine that if the two provisions were used in tandem during the next few years, mitigating both the underinclusion and overinclusion problems, supporters of the Act would have a stronger argument that the Act should withstand constitutional scrutiny the next time around.

Even if Section 5 doesn't survive its next trip to the Supreme Court, the pocket trigger is intriguing. One of the reasons that Congress didn't change the coverage formula when it last renewed Section 5 is that it?s hard to come up with a sensible -- and politically palatable -- formula to replace it. As Crum points out, the pocket trigger sidesteps that problem because it uses a trigger, not a formula, to determine which jurisdictions must comply with Section 5 and which need not. This type of approach might create a more flexible, dynamic preclearance process that should be less vulnerable to constitutional challenge than the current regime.

Full post as published by Balkinization on December 01, 2009 (boomark / email).