Could Texas remain subject to preclearance? The answer, which may surprise, is actually, yes.
In Tuesday’s Shelby Co. decision, the Supreme Court effectively ended preclearance - for now - under section 5 of the Voting Rights Act by invalidating the formula for determining what states are covered.
However, section 5 is not the only section of the Voting Rights Act that deals with preclearance. If certain conditions exist, courts also can impose tailor-made preclearance requirements under section 3 of the Voting Rights Act - a provision that, unlike section 5, applies nationwide and is not subject to expiration.
Up until now, that section hasn’t gotten a lot of attention in Texas because the state was already required to submit all voting changes for preclearance under section 5.
But it very well could come into play in the future, now that section 5 is effectively dead.
So how does section 3 work?
Basically, section 3 comes into play whenever a court in a case under section 2 of the Voting Rights Act finds intentional discrimination that would violate the 14th or 15th amendments to the Constitution.
Once that happens, the court has the discretion under section 3 not only to remedy the intentional discrimination but, if it choses, to retain jurisdiction and impose preclearance requirements - a process known colloquially as ‘bail in.’
As under section 5, preclearance under section 3 would require a jurisdiction to submit election or electoral changes either to the court or to the Justice Department.
Changes would be rejected unless the jurisdiction can show that the change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color” or abridge the guarantees afforded language minorities.
This language is virtually identical to the language of section 5 - though because of 2006 amendments to the scope of section 5, the extent of the discriminatory purpose test under section 3 may be somewhat narrower.
However, there are some differences between the two provisions.
One of these is that the court in a bail-in situation has the discretion to tailor a case specific time limit for preclearance - though, going in the other direction, it also has the power to require preclearance indefinitely until further order of the court.
Likewise, unlike with section 5, the court also has the power to tailor what election changes need to be submitted for preclearance and can require that only some, rather than all, electoral changes be reviewed.
In 1984, for example, the District of New Mexico ordered that New Mexico submit all redistricting plans for preclearance for the next decade.
By contrast, when Arkansas became bailed-in under section 3, the district court retained jurisdiction indefinitely but only required Arkansas to submit voting changes related to majority-vote requirements (plus its 1990 redistricting plan).
One final difference: While suits for preclearance under section 5 must be brought in federal court in the District of Columbia, preclearance claims in a bailed-in jurisdiction will be brought in the jurisdiction that heard the section 2 claims that gave rise to bail-in - e.g., in San Antonio court if that court finds intentional discrimination in the state’s newly adopted legislative and congressional maps.
To be sure, intentional discrimination is a high standard. But it’s something the D.C. court found existed in the 2011 maps in the section 5 context and that courts have found in the bail-in context in number of other jurisdictions.
In addition to Arkansas and New Mexico, courts also have bailed in Los Angeles County, California, Bernalillo County, New Mexico, Buffalo County, South Dakota, Charles Mix County, South Dakota, and the City of Chattanooga, Tennessee.
And as Texas moves forward in a strange, post-section 5, section 3 may become a more prominent feature of the Texas landscape as well.
NYU law professor Richard Plides suggests in an article that amending the section 3 trigger to include violations of the Voting Rights Act, National Voter Registration Act, and other similar laws might be one relatively easy way for Congress to fix the Voting Rights Act post-Shelby Co.