Antidiscrimination Law Archives - Columbia Law Review

Introduction Voting rights activists had a great summer in 2016. A string of favorable decisions threw out restrictive voting laws in Wisconsin,[footnote]One Wis. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 964 (W.D. Wis. 2016).[/footnote] Texas,[footnote]Veasey v. Abbott, 830 F.3d 216, 272 (5th Cir. 2016) (en banc).[/footnote] and North Carolina.[footnote]N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 242 (4th Cir. 2016).[/footnote] Advocates were particularly enthused by the Fourth Circuit’s decision in North Carolina State Conference of the NAACP v. McCrory ,[footnote]See, e.g., Jedediah Purdy, A Voting-Rights Victory in North Carolina, New Yorker (Aug. 2, 2016), http://www.newyorker.com/news/news-desk/a-voting-rights-victory-in-north-carolina [http://perma.cc/8BV3-XWHZ] (describing the McCrory decision as “a strong recognition that race continues to matter in the politics of voting”); Zachary Roth, Appeals Court Rejects Strict North Carolina Voting Law, NBC News (July 29, 2016), http://www.nbcnews.com/news/us-news/appeals-court-strikes-down-strict-north-carolina-voting-law-n619836 [http://perma.cc/NE78-BSXJ] (quoting Dale Ho, Director of the ACLU’s Voting Rights Project, describing McCrory as “a major victory for North Carolina voters and for voting rights” (internal quotation marks omitted)).[/footnote] which found that the North Carolina Legislature acted with discriminatory intent in passing House Bill 589[footnote] McCrory , 831 F.3d at 233.[/footnote] immediately after the Supreme Court’s decision in Shelby County v. Holder .[footnote]133 S. Ct. 2612 (2013).[/footnote] But largely overlooked[footnote]Some commentators noted the Fourth Circuit’s refusal to bail North Carolina into preclearance under Section 3 but failed to consider the potential precedential ramifications of the decision. See, e.g., Ian Millhiser, Breaking: Federal Appeals Court Strikes Down Worst Voter Suppression Law in the Nation, ThinkProgress (July 29, 2016), http://thinkprogress.org/breaking-federal-appeals-court-strikes-down-the-worst-voter-suppression-law-in-the-nation [http://perma.cc/4D3C-E3LP] (lamenting how the Fourth Circuit’s refusal to impose Section 3 relief “enabl[es] North Carolina lawmakers to enact more voter suppression laws in the future, provided that they behave more subtly,” without mentioning the impact of the decision on Section 3 jurisprudence as a whole).[/footnote] in the celebration around McCrory was the panel’s rejection—with only two sentences of analysis—of the plaintiffs’ request to bail North Carolina into preclearance under Section 3 of the Voting Rights Act of 1965 (VRA).[footnote] McCrory , 831 F.3d at 241. Section 3(c) of the VRA, codified at 52 U.S.C. § 10302(c) (2012), reads as follows: "If in any proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the [F]ourteenth or [F]ifteenth [A]mendment in any State or political subdivision the court finds that violations of the [F]ourteenth or [F]ifteenth [A]mendment justifying equitable relief have occurred within the territory of such State or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure 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 in contravention of the voting guarantees set forth in section 10303(f)(2) of this title: Provided , That such qualification, prerequisite, standard, practice, or procedure may be enforced if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the court’s finding nor the Attorney General’s failure to object shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure." See infra section I.B for an in-depth review of how jurisdictions can be “bailed in” to preclearance under Section 3(c) of the VRA. For the sake of simplicity, 52 U.S.C. § 10302(c) will be referred to as “Section 3” throughout this Note.[/footnote] Section 3 of the VRA is a seldom-used path to federal preclearance of state voting practice changes. It allows a federal judge, upon finding that a jurisdiction violated the Fourteenth or Fifteenth Amendment, to require that jurisdiction to obtain preapproval for any “voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting” prior to enactment.[footnote]52 U.S.C. § 10302(c).[/footnote] Congress intended Section 3 to supplement the broad preclearance under Sections 4 and 5, which required certain jurisdictions to obtain approval for changes to voting practices before enacting them[footnote]See infra section I.A for an overview of the structure of the VRA.[/footnote] and ensure preclearance coverage for discrete “pockets of discrimination.”[footnote]H.R. Rep. No. 89-439, at 13 (1965), as reprinted in 1965 U.S.C.C.A.N. 2437, 2444.[/footnote] However, Section 3 took on increased significance when the Supreme Court neutered Section 5 in Shelby County v. Holder .[footnote]See infra Part II.[/footnote] A few months after the McCrory decision, Donald Trump was elected the forty-fifth president of the United States, and the prevailing mood of voting rights activists shifted from celebratory to despondent. In the days and weeks after the election, numerous reports surfaced of voter suppression and voter intimidation across the country.[footnote]See, e.g., Ari Berman, Did Republicans Rig the Election?, Nation (Nov. 15, 2016), http://www.thenation.com/article/did-republicans-rig-the-election/ [http://perma.cc/Y49S-2FJ3] (profiling instances of reduced access to voting in several swing states and the potential impact on the 2016 election); Jeffery Toobin, The Real Voting Scandal of 2016, New Yorker (Dec. 12, 2016), http://www.newyorker.com/magazine/2016/12/12/ the-real-voting-scandal-of-2016 (on file with the Columbia Law Review ) (highlighting the effect of voter suppression after Shelby County ); Vanessa Williamson, Voter Suppression, Not Fraud, Looms Large in U.S. Elections, Brookings Inst. (Nov. 8, 2016), http://www.brookings.edu/ blog/fixgov/2016/11/08/voter-suppression-in-u-s-elections/ [http://perma.cc/T7AG-5PT6] (detailing expansion of voter suppression laws).[/footnote] Many of these reports highlighted changes to voting practices that would likely have been prevented before Shelby County v. Holder effectively eliminated Section 5 preclearance.[footnote]See, e.g., Emily Bazelon, The Supreme Court Ruled That Voting Restrictions Were a Bygone Problem. Early Voting Results Suggest Otherwise., N.Y. Times (Nov. 7, 2016), http://www.nytimes.com/2016/11/07/magazine/the-supreme-court-ruled-that-voting-restrictions-were-a-bygone-problem-early-voting-results-suggest-otherwise.html?_r=0 (on file with the Columbia Law Review ) (explaining jurisdictions have been “testing how far they can go with voter suppression” after Shelby County ); Eric Mount, Gutting of Voting Rights Act Allowed Multiple States to Impede Minority Votes, Advocate-Messenger (Nov. 17, 2016), http://www.amnews.com/2016/11/17/gutting-of-voting-rights-act-allowed-multiple-states-to-impede-minority-votes/ [http://perma.cc/Rp6S-4958] (noting that 868 polling places were closed in states with records of voting discrimination between the Shelby County decision and the 2016 election); Editorial, The Voters Abandoned by the Court, N.Y. Times (Nov. 8, 2016), http://www.nytimes.com/2016/11/09/opinion/the-voters-abandoned-by-the-court.html (on file with the Columbia Law Review ) (noting “a vast majority” of poll closings prior to the 2016 election “would have been blocked had the Voting Rights Act not been eviscerated by the Roberts Court”).[/footnote] This recent evidence of race-based voter suppression amplified concerns about whether the Fourth Circuit’s decision endangered the continuing viability of Section 3 preclearance as a pathway to require jurisdictions that discriminate to obtain preapproval before making changes to voting laws or procedures.[footnote]See Lyle Denniston, Constitution Check: Is Section 3 of the Voting Rights Act a Dead Letter?, Nat’l Constitution Ctr.: Constitution Daily (Aug. 9, 2016), http://blog.constitutioncenter.org/2016/08/constitution-check-is-section-3-of-the-voting-rights-act-a-dead-letter/ [http://perma.cc/H9EC-G6TJ] (describing the potential limiting effect of McCrory on Section 3’s power to protect against race-based voter suppression).[/footnote] Then, weeks before Trump’s inauguration, the Southern District of Texas imposed Section 3 preclearance on the city of Pasadena, Texas for impermissibly diluting the vote of Latino citizens.[footnote]Patino v. City of Pasadena, 230 F. Supp. 3d 667, 728 (S.D. Tex. 2017).[/footnote] The court held that because “Pasadena officials intentionally discriminated against Latinos in diluting their voting strength,” the city would be required “to submit future changes to its electoral map and plan” for approval prior to implementation.[footnote]Id. at 729.[/footnote] McCrory and Patino reach opposite conclusions, but neither opinion engages in meaningful analysis of Section 3. Section 3 preclearance garnered little academic or judicial attention from the time it was enacted as part of the VRA until the Supreme Court’s decision in Shelby County v. Holder ,[footnote]See, e.g., Travis Crum, Note, The Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance, 119 Yale L.J. 1992, 1997 & n.23 (2010) (discussing the dearth of academic literature discussing Section 3). Since the Shelby County decision, Section 3 has received marginally more attention, primarily in student notes. See, e.g., Roseann R. Romano, Note, Devising A Standard for Section 3: Post– Shelby County Voting Rights Litigation, 100 Iowa L. Rev. 387, 404–05 (2014) (arguing Section 3 may be triggered by a violation of the Fourteenth Amendment under an invidious discrimination standard that is short of intentional discrimination); Paul M. Wiley, Note, Shelby and Section 3: Pulling the Voting Rights Act’s Pocket Trigger to Protect Voting Rights After Shelby County v. Holder , 71 Wash. & Lee L. Rev. 2115, 2118–19 (2014) (exploring the possibility of Section 3 implementation post– Shelby County ).[/footnote] and these opinions both missed a timely opportunity to shed some light on how Section 3 should be interpreted in a post– Shelby County world. Before the Supreme Court’s decision in Shelby County , Section 3 preclearance was an afterthought, fertile ground for law professors to stump first-year students in their Constitutional Law classes. Shelby County transformed Section 3 from an essentially forgotten clause of the VRA—invoked fewer than twenty times in forty-eight years[footnote]See infra section I.B.2.[/footnote]—to the sole remaining conduit to require preapproval for changes to voting laws in jurisdictions with a history of discrimination. Much of the limited scholarship surrounding Section 3 traverses a common path: First, articles lament how Section 3 requires a judicial finding of discriminatory intent,[footnote]See, e.g., Brian F. Jordan, Note, Finding Life in Hurricane Shelby : Reviving the Voting Rights Act by Reforming Section 3 Preclearance, 75 Ohio St. L.J. 969, 979 (2014) (noting that before imposing Section 3 preclearance, a “court must first find that the jurisdiction engaged in intentional discrimination, which is a very difficult burden” (footnote omitted)); Romano, supra note 18, at 404–05 (arguing Section 3 requires a court to find only “invidious discrimination” rather than the more burdensome “intentional discrimination”); Wiley, supra note 18, at 2136–37 (suggesting Section 3 be interpreted to presume discriminatory purpose and place a burden on the state or locality to disprove this presumption).[/footnote] and second, they suggest ways that Congress may amend Section 3 to increase its effectiveness and scope.[footnote]See, e.g., Jordan, supra note 20, at 992 (“Congress should update Section 3’s preclearance mechanism by lowering its standard of proof for submitting jurisdictions and by amending Section 3 to clarify its scope.”); Romano, supra note 18, at 409 (discussing potential congressional reform of Section 3); Wiley, supra note 18, at 2147–48 (reviewing proposed changes to Section 3 that would remove the need for a constitutional violation).[/footnote] While this may be a desirable solution, legislative reform strengthening the VRA is unlikely after the 2016 election.[footnote]See, e.g., Ari Berman, Jeff Sessions Has Spent His Whole Career Opposing Voting Rights, Nation (Jan. 10, 2017), http://www.thenation.com/article/jeff-sessions-has-spent-his-whole-career-opposing-voting-rights/ [http://perma.cc/38JX-R7VF] [hereinafter Berman, Sessions] (“In 2013, Jeff Sessions, Donald Trump’s nominee for attorney general, cheered the gutting of the Voting Rights Act, calling it ‘good news . . . for the South.’”); see also Manny Fernandez & Eric Lichtblau, Justice Dept. Drops a Key Objection to a Texas Voter ID Law, N.Y. Times (Feb. 27, 2017), http://www.nytimes.com/2017/02/27/us/justice-dept-will-drop-a-key-objection-to-a-texas-voter-id-law.html (on file with the Columbia Law Review ) (reporting the “complete 180-degree turn” taken by the Department of Justice under Sessions’s leadership (internal quotation marks omitted) (quoting Danielle Lang, a lawyer for the Campaign Legal Center)).[/footnote] While legislative reform of Section 3 is still a worthwhile goal, the obstacles facing such legislation make it imperative to make the best possible use of Section 3 as it is currently written. This Note provides one option for maximizing the usefulness of Section 3 by articulating a reasonable judicial framework for imposing Section 3 preclearance, filling in the gap left by the McCrory and Patino decisions. Part I examines the structure of the VRA and the origins and purposes of Section 5 preclearance. It also takes a closer look at preclearance under Section 3 of the VRA and reviews the limited case law interpreting Section 3 prior to Shelby County . Part II touches on voting rights cases since Shelby County that have asked for Section 3 preclearance as a remedy and analyzes North Carolina State Conference of the NAACP v. McCrory and Patino v. City of Pasadena —the only decisions that have explicitly considered Section 3 preclearance. Finally, Part III suggests a judicial framework for imposing Section 3 preclearance and applies this framework to the facts of McCrory and Patino . I. Overview of the Voting Rights Act and a Renewed Look at Section 3 Preclearance This Part reviews the basic structure of the VRA and how it prevented states from enacting discriminatory voting changes prior to Shelby County . Section I.A reviews the VRA’s individual right of action and the pre– Shelby County preclearance mechanism. Section I.B introduces Section 3 preclearance and highlights its flexibility in comparison to the now-defunct Section 5 preclearance. A. Setting the Stage: An Overview of the Voting Rights Act Congress passed the VRA to “enforce the [F]ifteenth [A]mendment to the Constitution of the United States” after three previous legislative attempts to protect the right to vote for people of color proved ineffective.[footnote]Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended in scattered sections of 52 U.S.C.). The VRA was passed after the Civil Rights Acts of 1957, 1960, and 1964. For a discussion of how those acts tried and failed to remedy and prevent race-based voter suppression, see Garrine P. Laney, Cong. Research Serv., No. 95-896, The Voting Rights Act of 1965, As Amended: Its History and Current Issues 6–7 (2008), http://digital.library.unt.edu/ark:/67531/metadc26107/m1/1/high_res_d/95-896_2008 Jun12.pdf [http://perma.cc/R85V-6KNQ].[/footnote] The VRA was a comprehensive approach to achieving equality at the ballot box[footnote]See Donald Campbell, Partisanship, Politics, and the Voting Rights Act: The Curious Case of U.S. v. Ike Brown , 29 Harv. J. Racial & Ethnic Just. 33, 44–46 (2013) (describing the VRA as a systematic response to the failure of the Civil Rights Acts of 1957, 1960, and 1964 to achieve Congress’s goals).[/footnote] and a monumental step toward racial equality in the United States,[footnote]Cf. Shelby County v. Holder, 133 S. Ct. 2612, 2619 (2013) (describing the VRA as a congressional response to the civil rights movement after a century of failed enforcement of the Fifteenth Amendment).[/footnote] of which Section 3 was one small part. A brief review of the structure and function of the VRA is necessary to fully understand why Section 3 preclearance was “rarely used”[footnote]N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 241 (4th Cir. 2016) (internal quotation marks omitted) (quoting Conway Sch. Dist. v. Wilhoit, 854 F. Supp. 1430, 1442 (E.D. Ark. 1994)).[/footnote] for nearly fifty years and how Shelby County thrust it into prominence. The full act has nineteen sections, but this section will review only Sections 2, 4(a), 4(b), and 5, which—along with Section 3 (discussed in depth in section I.B)—create the main structure for preventing jurisdictions from enacting discriminatory voting mechanisms. 1. Section 2: Individual Action . — Section 2 of the VRA—which prohibits states from applying any “qualification or prerequisite” that “den[ies] or abridge[s]” the right to vote on the basis of “race or color”[footnote]Voting Rights Act § 2.[/footnote]— is “a statutory form of the Fifteenth Amendment.”[footnote] Laney, supra note 23, at 12.[/footnote] It provides the opportunity for individuals (and the Attorney General) to enforce the Fifteenth Amendment through individual lawsuits.[footnote]See id.; Daniel P. Tokaji, Public Rights and Private Rights of Action: The Enforcement of Federal Election Laws, 44 Ind. L. Rev. 113, 138 & n.198 (2010) (noting the Supreme Court has allowed “private enforcement” of Section 2 of the VRA even though the statute itself does not “expressly confer” a private “right of action”).[/footnote] Originally interpreted by the Supreme Court to apply only to instances of intentional discrimination,[footnote]City of Mobile v. Bolden, 446 U.S. 55, 60–61 (1980) (holding Section 2 merely restated the restrictions of the Fifteenth Amendment and therefore “add[ed] nothing to [a] . . . Fifteenth Amendment claim”); see also Frank R. Parker, The “Results” Test of Section 2 of the Voting Rights Act: Abandoning the Intent Standard, 69 Va. L. Rev. 715, 716 (1983) (explaining how City of Mobile imputed a requirement of intentional discrimination into Section 2).[/footnote] Section 2 was amended by the Voting Rights Act Amendments of 1982 to prohibit states and other political subdivisions from restricting access to the vote in any way that “result[ed] in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.”[footnote]Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, §3, 96 Stat. 131, 134 (codified as amended in 52 U.S.C. § 10301 (Supp. II 2015)).[/footnote] 2. Sections 4(a), 4(b), and 5: Preclearance and Who It Covers . — Sections 4(a), 4(b), and 5 of the VRA are interdependent and best explained together. Section 5 requires certain jurisdictions to obtain preapproval from the Department of Justice (DOJ) before enacting new voting mechanisms; Section 4(b) articulates the jurisdictions to which Section 5 applies; and Section 4(a) allows covered jurisdictions to bail out of Section 5 preclearance upon meeting certain criteria.[footnote]Voting Rights Act of 1965, §§ 4(a)–(b), 5.[/footnote] Section 5 preclearance was the VRA’s primary vehicle for eliminating race-based voter suppression. Section 5 required certain jurisdictions to seek preapproval from the DOJ or the United States District Court for the District of Columbia[footnote]For an analysis of the exclusive jurisdiction given to the D.C. District Court for Section 5 cases, see Michael E. Solimine, Rethinking District of Columbia Venue in Voting Rights Preclearance Actions, 103 Geo. L.J. Online 29, 31–33 (2014), http://georgetownlaw journal.org/articles/171/rethinking-distrcit-of-columbia/pdf [http://perma.cc/LZW7-6RKE].[/footnote] prior to “enact[ing] . . . any . . . standard, practice, or procedure with respect to voting.”[footnote]Voting Rights Act § 5.[/footnote] Under Section 5, the state could change its voting practices only if the DOJ or D.C. District Court determined that the change would “not have the effect of denying or abridging the right to vote on account of race or color.”[footnote]Id.[/footnote] In Allen v. State Board of Elections , the Supreme Court interpreted Section 5 to cover all changes to a covered state’s election law, both great and small.[footnote]393 U.S. 544, 565–67 (1969) (“The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.”).[/footnote] Section 4(b) limited the jurisdictions subject to Section 5 preclearance to those with a history of pervasive race-based voter suppression.[footnote]Voting Rights Act § 4(b).[/footnote] The Act of 1965 imposed preclearance on states and all political subdivisions therein that “maintained on November 1, 1964, any test or device” that Congress found to discriminatorily restrict the right to vote.[footnote]Id. Section 4(c) of the VRA defined “test or device” as "any requirement that a person . . . (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." Id. § 4(c).[/footnote] Also included in the coverage formula were jurisdictions where less than fifty percent of the voting-age population was registered to vote on November 1, 1964, or voted in the presidential election of 1964.[footnote]Id. § 4(b).[/footnote] Section 4(b) was subsequently amended in 1970 and 1975 to include states and jurisdictions that maintained a discriminatory test or device as of November 1 of 1964, 1968, or 1972, and those where less than half of the voting-age population was registered to vote or voted in the presidential elections of 1964, 1968, or 1972.[footnote]52 U.S.C. § 10303(b) (2012).[/footnote] Section 4(a) allowed a jurisdiction covered by Section 4(b) to be released from coverage if it could show it had not imposed a test or device “for the purpose or with the effect of denying or abridging the right to vote on account of race or color” in the previous five years.[footnote]Voting Rights Act § 4(a).[/footnote] The Voting Rights Amendment Act of 1970 extended the necessary period from five years to ten years.[footnote]Laney, supra note 23, at 14.[/footnote] The Voting Rights Amendment Act of 1975 extended the necessary period from ten years to seventeen years, but the Voting Rights Act Amendments of 1982 provided an alternative path for being released from coverage if the jurisdiction was able to meet certain criteria.[footnote]Id. at 17, 22. The Act of 1982 listed seven criteria that a jurisdiction must meet in order to be released from coverage. Id. at 22–23. Between 1965 and 2013, approximately 140 jurisdictions (mostly towns, counties, and school districts) bailed out of the coverage formula. Section 4 of the Voting Rights Act, U.S. Dep’t of Justice, https://www.justice.gov /crt/section-4-voting-rights-act#bailout [http://perma.cc/M7GT-BPMS] (last updated Aug. 8, 2015).[/footnote] Together, Sections 4(a), 4(b), and 5 of the VRA effectively prevented covered jurisdictions from enacting discriminatory voting laws for forty-eight years, from the passage of the VRA in 1965 until June 25, 2013,[footnote]133 S. Ct. 2612, 2634 (2013) (Ginsburg, J., dissenting).[/footnote] when Shelby County v. Holder struck down Section 4(b) of the VRA as unconstitutional.[footnote]Id. at 2631 (majority opinion).[/footnote] The Court held that Section 4(b), last updated in 1975, was outdated, and that it was impermissible to treat states differently based on data from 1964, 1968, and 1972.[footnote]Id. at 2627–28. For a more thorough account of the Shelby County decision, see generally John Schwartz, Between the Lines of the Voting Rights Act Opinion, N.Y. Times (June 25, 2013), http://www.nytimes.com/interactive/2013/06/25/us/annotated-supreme-court-decision-on-voting-rights-act.html (on file with the Columbia Law Review ).[/footnote] By declaring Section 4(b) unconstitutional, the Court eliminated the DOJ’s primary source of authority to require jurisdictions to preclear changes to their voting laws and procedures.[footnote] Shelby County , 122 S. Ct at 2620, 2628. It may prove to be important that the Supreme Court’s decision in Shelby County did not directly decide on the constitutionality of Section 5 of the VRA; the Court struck down only the coverage formula in Section 4(b) as unconstitutional. Id. at 2631. Legislators have introduced bills in both houses of Congress to create a new coverage formula that passes constitutional muster and resurrects Section 5. See Edward Blum, The Court After Scalia: The Future of Voting Rights, SCOTUSblog (Aug. 30, 2016), http://www.scotusblog.com/2016/08/the-court-after-scalia-the-future-of-voting-rights/ [http://perma.cc/8XCR-YN4E]. It is doubtful that either of these bills will gain much traction, however, and in the meantime, Section 5 is powerless without Section 4(b) to provide the scope of its coverage. See supra section I.A.2.[/footnote] B. A Closer Look at Section 3 Preclearance Section 3 of the VRA provides: If . . . [a] court finds that violations of the [F]ourteenth or [F]ifteenth [A]mendment justifying equitable relief have occurred within . . . [a] State or political subdivision, [it] . . . shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless [it] . . . 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.[footnote]52 U.S.C. § 10302(c) (2012). The current language is essentially unchanged from that included in the Act of 1965. The Voting Rights Act of 1965 referenced only the Fifteenth Amendment, Pub. L. No. 89-110, § 3, 79 Stat. 437, 437–38, but the Voting Rights Amendment Act of 1975 amended the section to include violations of the Fourteenth Amendment, Pub. L. No. 94-73, Title II, § 205, 89 Stat. 400, 402.[/footnote] Section 3 was included in the VRA to catch and bring into preclearance “discrete pockets of discrimination” that were not included in the coverage formula in Section 4(b).[footnote]H.R. Rep. No. 89-439, 89th Cong., at 13 (1965), as reprinted in 1965 U.S.C.C.A.N. 2437, 2444.[/footnote] Section 3 is often referred to as the “bail-in” provision of the VRA because it allows courts to bring jurisdictions not covered by Section 4(b) into preclearance.[footnote]See Crum, supra note 18, at 1997.[/footnote] This section provides background on Section 3 preclearance and its imposition pre– Shelby County . Section I.B.1 compares Section 3 preclearance to Section 5 preclearance, highlighting Section 3’s greater flexibility in contrast to Section 5’s all-encompassing preclearance requirements. Section I.B.2 provides an overview of Section 3’s infrequent use between passage of the VRA and Shelby County and introduces Jeffers v. Clinton ,[footnote]740 F. Supp. 585, 601 (E.D. Ark. 1990).[/footnote] the first instance of judicially imposed Section 3 preclearance and a potential roadmap for future analysis. 1. Comparing Preclearances: Section 3 vs. Section 5 . — Prior to Shelby County , preclearance under Section 5 of the VRA was a “[p]articularly effective” remedy to prevent voting discrimination.[footnote] Shelby County , 133 S. Ct. at 2633 (Ginsburg, J., dissenting).[/footnote] While Shelby County did not rule on Section 5’s constitutionality, it was clearly uncomfortable with Section 5’s power to abrogate state sovereignty.[footnote]See id. at 2618 (majority opinion) (describing Section 5 as “a drastic departure from basic principles of federalism”); see also id. at 2331–32 (Thomas, J., concurring) (arguing the majority opinion “compellingly demonstrates” that Section 5 is also unconstitutional and should be struck down).[/footnote] In order for Section 3 to mitigate the effects of Shelby County , Section 3 preclearance must be able to survive scrutiny from a Supreme Court that has been reluctant to allow this type of infringement on states’ rights.[footnote]See, e.g., Crum, supra note 18, at 2024–27 (describing how Section 3 preclearance responds to the Supreme Court’s major concerns about the constitutionality of Section 5 preclearance).[/footnote] Even though the word “preclearance” is used to describe the preapproval requirements in both Sections 3 and 5 of the VRA, Section 3 preclearance is different from Section 5 preclearance in several important ways, all of which make Section 3 preclearance a more narrowly tailored and flexible remedy than Section 5 preclearance. First and most importantly, Section 3 preclearance directly responds to Shelby County ’s argument that Section 4(b) was invalid because it was “based on decades-old data and eradicated practices.”[footnote] Shelby County , 133 S. Ct. at 2627 (majority opinion); see also Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009) (“The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance.”).[/footnote] The Court held that in order to abrogate equal sovereignty principles, “any ‘disparate geographic coverage’ must be ‘sufficiently related to the problem that it targets.’”[footnote] Shelby County , 133 S. Ct. at 2630 (quoting Nw. Austin , 557 U.S. at 203).[/footnote] Section 3 neatly addresses this concern by requiring a court to find that a jurisdiction acted with discriminatory purpose before imposing preclearance.[footnote]Section 3 preclearance is available to remedy only a violation of the Fourteenth or Fifteenth Amendments. 52 U.S.C. § 10302(c) (2012). Current Supreme Court jurisprudence requires a finding of intentional discrimination to establish a violation of either amendment. See City of Mobile v. Bolden, 446 U.S. 55, 62 (1980) (holding discriminatory purpose necessary to find a violation of the Fifteenth Amendment); Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979) (“[E]ven if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.”). The requirement for a finding of discriminatory purpose also distinguishes Section 3 of the VRA from Section 2, which was amended by the Voting Rights Act Amendments of 1982 to cover both discriminatory purpose and effect. See supra section I.A.1. Some scholars have suggested responding to the Shelby County decision by amending the VRA so that Section 3 preclearance could be imposed in response to a finding of discriminatory effects as well as discriminatory purpose. See supra note 21 (listing articles that recommend legislative reform of Section 3). However, given Donald Trump’s victory in the 2016 presidential election, legislative remedies are increasingly unlikely. See, e.g., Berman, Sessions, supra note 22; Fernandez & Lichtblau, supra note 22.[/footnote] Because Section 3 preclearance can be imposed on a jurisdiction only in response to a specific and current constitutional violation, it obviates the Shelby County Court’s concern about using forty-year-old data to justify present-day disparate treatment of states. Second, Section 3 preclearance allows for considerable durational flexibility. Prior to Shelby County , the only escape for a jurisdiction subject to Section 5 preclearance was to bail out of the coverage formula under Section 4(a).[footnote]See supra section I.A.2. The Shelby County Court also objected to the ever-increasing duration of the Section 5 preclearance requirement. See Shelby County , 133 S. Ct. at 2618 (“Nearly 50 years later, [Section 5 preclearance for states covered by Section 4(b) is] still in effect; indeed, [it has] been made more stringent, and [is] now scheduled to last until 2031.”).[/footnote] However, the text of Section 3 provides the flexibility that Sections 4(a) and 4(b) lack by allowing a court to impose preclearance “for such period as it may deem appropriate.”[footnote]52 U.S.C. § 10302(c).[/footnote] Under Section 3, a court may impose preclearance for a predetermined amount of time.[footnote]See, e.g., Sanchez v. Anaya, No. 82-0067M, at 2–3 (D.N.M. Dec. 17, 1984) (on file with the Columbia Law Review ) (imposing Section 3 preclearance to expire after ten years).[/footnote] Additionally, after setting a timeframe for preclearance, a court may later decide that preclearance is no longer necessary and lift the requirement ahead of schedule.[footnote]See 52 U.S.C. § 10302(c).[/footnote] Finally, courts may craft Section 3 relief to target only certain types of voting changes that must be approved prior to implementation. Section 5 preclearance covers all changes to any “standard, practice, or procedure with respect to voting,”[footnote]Id. § 10304(a); see also Allen v. State Bd. of Elections, 393 U.S. 544, 565–66 (1969) (“The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.”).[/footnote] and the Supreme Court has repeatedly expressed its reservations about this arrangement.[footnote]See, e.g., Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202 (2009) (“Section 5 goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—[and] . . . applies broadly . . . to every political subdivision in a covered State, no matter how small.” (citations omitted)); see also Shelby County , 133 S. Ct. at 2624 (reiterating and emphasizing concerns brought up by Northwest Austin ).[/footnote] Under Section 3, however, a court may tailor the preclearance requirement to specifically address the constitutional violation, leaving other, unrelated “standard[s], practice[s], or procedure[s] related to voting” unaffected.[footnote]52 U.S.C. § 10302(c). For examples of how courts have tailored Section 3 preclearance, see Jeffers v. Clinton, 740 F. Supp. 585, 601–02 (E.D. Ark. 1990) (bailing Arkansas into preclearance only for changes to plurality-vote requirements in general elections); Sanchez , No. 82-0067M, at 2–3 (imposing Section 3 preclearance only for state legislative redistricting plans).[/footnote] Section 3 preclearance is thus far more flexible and narrowly targeted than Section 5 preclearance, and as such, imposition of Section 3 preclearance is likely to survive judicial scrutiny under the Supreme Court’s recent voting rights jurisprudence. 2. Section 3 Preclearance Before Shelby County : Consent Decrees and Jeffers v. Clinton . — Section 3 was largely forgotten between its enactment and Shelby County . Only eighteen jurisdictions were bailed into preclearance under Section 3 between the enactment of the VRA in 1965 and Shelby County .[footnote]See Brief for the Federal Respondent app. 1a–3a, Shelby County , 133 S. Ct. 2612 (No. 12-96), 2013 WL 315242.[/footnote] For the sake of comparison, in the same time period, the DOJ issued 1,084 letters under Section 5 objecting to one or more election changes.[footnote]The breakdown of objection letters issued by state is as follows: Alabama: 104, Alaska: 1, Arizona: 22, California: 6, Florida: 5, Georgia: 177, Louisiana: 148, Michigan: 1, Mississippi: 173, New Mexico: 1, New York: 13, North Carolina: 67, South Carolina: 122, South Dakota: 4, Texas: 207, Virginia: 33. See Section 5 Objection Letters, U.S. Dep’t of Justice, https://www.justice.gov/crt/section-5-objection-letters [http://perma.cc/BK29-U6AC] (last updated Aug. 7, 2015). The data have been aggregated into a single spreadsheet. Section 5 Objection Letters (compiled Nov. 4, 2016) (unpublished data set) (on file with the Columbia Law Review ).[/footnote] The exhaustive list of jurisdictions that were subjected to Section 3 preclearance prior to Shelby County includes the state of Arkansas;[footnote] Jeffers , 740 F. Supp. at 601. [/footnote] the state of New Mexico and five counties within New Mexico;[footnote]See United States v. McKinley County, 941 F. Supp. 1062, 1064 (D.N.M. 1996) (referencing a 1986 consent decree under which “[t]he court retained oversight jurisdiction of the county’s electoral process for a period of five years”); Amended Joint Stipulation at 4, United States v. Sandoval County, No. 88-1457 (D.N.M. September 28, 2007) (on file with the Columbia Law Review ) (describing a 1994 consent decree that “establish[ed] Voting Rights Act coverage for Sandoval County” under Section 3); Stipulation and Order at 8, United States v. Cibola County, No. 93-1134 (D.N.M. Apr. 21, 1994) (on file with the Columbia Law Review ); Consent Agreement at 8, United States v. Socorro County, No. 93-1244 (D.N.M. Apr. 11, 1994) (on file with the Columbia Law Review ); Sanchez , No. 82-0067M, at 2–3.[/footnote] one county in Nebraska;[footnote]Consent Decree at 3, United States v. Thurston County, No. 78-0-380 (D. Neb. May 9, 1979) [hereinafter Thurston Consent Decree] (on file with the Columbia Law Review ).[/footnote] one county and one school district in Florida;[footnote]See NAACP. v. Gadsden Cty. Sch. Bd., 589 F. Supp. 953, 958–59 (N.D. Fla. 1984); Order at 3, McMillan v. Escambia Cty., No. 77-0432 (N.D. Fla. Dec. 3, 1979) (on file with the Columbia Law Review ).[/footnote] one county in Illinois;[footnote]See U.S. Comm’n on Civil Rights, Voting Rights Enforcement and Reauthorization: The Department of Justice’s Record of Enforcing the Temporary Voting Rights Act Provisions 12 (2006), http://www.law.umaryland.edu/marshall/usccr/ documents/051006VRAStatReport.pdf [http://perma.cc/RPP4-WLJN] (reporting that Alexander County in Illinois was covered under Section 3 between 1983 and 1988). [/footnote] one city in Tennessee;[footnote]Agreed Order at 3, Brown v. Bd. of Comm’rs, No. CIV-1-87-388 (E.D. Tenn. Jan. 18, 1990) (on file with the Columbia Law Review ).[/footnote] one school district in Colorado;[footnote]See NAACP Legal Def. & Educ. Fund, A Primer on Sections 2 & 3(c) of the Voting Rights Act 3–4 & n.16 http://www.naacpldf.org/files/case_issue/Sections%202%20and% 203c%20primer%207.14.17%20%2800040994x9DDAC%29_0.pdf [http://perma.cc/8S2F-6HAG] (last visited Sept. 26, 2017) (noting that the Montezuma-Cortez School District was bailed into Section 3 through a consent decree).[/footnote] two counties in California;[footnote]See U.S. Comm’n on Civil Rights, supra note 70, at 12 (noting Alameda County was covered under Section 3 from 1996 to 1998 and Los Angeles County was covered from 1991 to 2002). [/footnote] two counties in South Dakota;[footnote]Consent Decree at 2, Blackmoon v. Charles Mix County, No. 05-4017 (D.S.D. Dec. 4, 2007) (on file with the Columbia Law Review ); Consent Decree at *6–7, Kirke v. Buffalo County, No. 03-CV-3011 (D.S.D. Feb. 10, 2004), 2004 U.S. Dist. LEXIS 30960.[/footnote] and one village in New York.[footnote]Consent Decree at 5, United States v. Village of Port Chester, No. 06-15173 (S.D.N.Y. Dec. 22, 2009) (on file with the Columbia Law Review ).[/footnote] Two jurisdictions have been bailed into preclearance under Section 3 after Shelby County : Evergreen, Alabama and Pasadena, Texas.[footnote]Patino v. City of Pasadena, 230 F. Supp. 3d 667, 729–30 (S.D. Tex. 2017); Order at 4, Allen v. City of Evergreen, No. 13-0107 (S.D. Ala. Jan. 13, 2014), 2014 WL 12607819 [hereinafter Allen Order].[/footnote] Eighteen of the twenty jurisdictions subjected to Section 3 preclearance consented to preclearance to settle a lawsuit. The first case to adversely impose Section 3 preclearance was Jeffers v. Clinton ,[footnote]740 F. Supp. 585, 601 (E.D. Ark. 1990).[/footnote] which bailed Arkansas into preclearance.[footnote] Jeffers bailed Arkansas into preclearance only for changes to plurality-vote requirements and for one upcoming redistricting decision. Id. at 601–02; see supra section I.B.1 for a discussion about the flexibility of Section 3 preclearance.[/footnote] Patino v. City of Pasadena recently became the second case to adversely impose Section 3 preclearance, but the Patino opinion included only limited analysis of whether Section 3 relief was appropriate.[footnote]230 F. Supp. 3d at 729 (stating Section 3 preclearance was an appropriate remedy because city officials “intentionally discriminated against Latinos”); see also infra sections II.C, III.C.2.[/footnote] Unlike Patino , the Jeffers court thoroughly analyzed whether Section 3 preclearance was an appropriate remedy. Jeffers held that the Arkansas legislature acted with discriminatory intent when it created a majority-vote requirement in response to the election of people of color to various public offices by a plurality vote.[footnote] Jeffers , 740 F. Supp. at 594–95.[/footnote] After finding that the majority-vote statutes violated the Fourteenth and Fifteenth Amendments, the Jeffers court considered imposing Section 3 preclearance on Arkansas.[footnote]Id. at 599–600.[/footnote] Unable to find prior cases interpreting Section 3, the court embarked on a detailed analysis of when preclearance under Section 3 may be necessary.[footnote]Id. at 599–602.[/footnote] The court first looked at the text of the statute, but proceeded to interpret the statutory text both narrowly[footnote]Id. at 600 (“We also think that more than one violation must be shown. The statute uses the plural (‘violations,’) and it would be strange if a single infringement could subject a State to such strong medicine.”).[/footnote] and broadly.[footnote]Id. (holding that use of the word “shall” does not mean that Section 3 preclearance is mandatory whenever constitutional violations are found). One may argue that Jeffers erred on this point, that the text of the statute does not allow a court any discretion and instead mandates imposition of Section 3 preclearance once a constitutional violation is found. See 52 U.S.C. § 10302(c) (2012) (“If . . . [the] court finds that violations of the [F]ourteenth or [F]ifteenth [A]mendment justifying equitable relief have occurred . . . the court . . . shall retain jurisdiction . . . .”). The Supreme Court has recently held that the word “shall” eliminates judicial discretion. See, e.g., Kingdomware Technologies, Inc. v. United States, 136 S. Ct. 1969, 1977 (2016) (“Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.”); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (“The . . . instruction comes in terms of the mandatory ‘shall,’ which normally creates an obligation impervious to judicial discretion.”). But see Hecht Co. v. Bowles, 321 U.S. 321, 328–29 (1944) (rejecting an argument that the use of “shall” in a statute eliminated judicial discretion); see also Bryan A. Garner, Shall We Abandon Shall?, A.B.A. J.: Bryan Garner on Words (Aug. 1, 2012), http://www.abajournal.com/magazine/article/shall_we_abandon_shall/ [http://perma.cc/F5SR-ZSQK] (arguing the word “shall” is inherently ambiguous and can be interpreted as both mandatory and permissive).[/footnote] The court then set a framework to guide its analysis of whether to impose Section 3 preclearance: Have the violations been persistent and repeated? Are they recent or distant in time? Are they the kinds of violations that would likely be prevented, in the future, by preclearance? Have they already been remedied by judicial decree or otherwise? How likely are they to recur? Do political developments, independent of this litigation, make recurrence more or less likely?[footnote] Jeffers , 740 F. Supp. at 601.[/footnote] After considering these factors, but without explaining how each factor weighed in its decision, the court decided that limited preclearance was necessary.[footnote]Id. The court imposed Section 3 preclearance after stating that it “fully considered all of these factors in the light of the entire record,” but it didn’t describe how it considered each factor, so it is difficult to discern whether any factor carried more or less weight. Id.[/footnote] The court carefully crafted its order of preclearance, tailoring it to the specific constitutional violation: “[A]ny further statutes, ordinances, regulations, practices, or standards imposing or relating to a majority-vote requirement in general elections in this State must be subjected to the preclearance process.”[footnote]Id. It is noteworthy that the court also considered—and dismissed—the state sovereignty considerations that motivated the Shelby County decision to declare Section 4(b) unconstitutional. “[W]e have in mind . . . the interest of the defendants in maintaining the sovereignty of the State, . . . [but] [t]he whole purpose of the Fourteenth and Fifteenth Amendments and of the Voting Rights Act is to override state action, and undue deference to state sovereignty cannot be permitted to thwart this purpose.” Id.[/footnote] Jeffers v. Clinton garnered almost no attention from the legal academic community.[footnote]A Westlaw search conducted September 2, 2017, shows that thirty-five law review articles have cited Jeffers since it was decided over twenty-seven years ago. Westlaw, http://1.next.westlaw.com (search “740 F. Supp. 585”; then follow “citing references” hyperlink; then filter by “secondary sources”; then filter by “law reviews”) (last visited Sept. 2, 2017). For the sake of comparison, Westlaw shows that 795 law review articles have cited Shelby County in just over four years since it was decided. Westlaw, http://1.next.westlaw.com (search “133 S. Ct. 2612”; then follow “citing references” hyperlink; then filter by “secondary sources”; then filter by “law reviews”) (last visited Sept. 2, 2017). While it might seem unfair to compare a lone district court opinion to the Supreme Court opinion that upended fifty years of voting rights protection, the fact that Jeffers was not seen as a notable voting rights opinion is precisely the point.[/footnote] Along with Section 3 preclearance in general, Jeffers remained largely ignored until the Supreme Court handed down its opinion in Shelby County v. Holder and Section 3 morphed from an afterthought to the sole remaining pathway for requiring jurisdictions to preclear voting changes. II. Section 3 After Shelby County : North Carolina State Conference of the NAACP v. McCrory and Patino v. City of Pasadena This Part reviews the aftermath of the Shelby County decision and evaluates the North Carolina State Conference of the NAACP v. McCrory and Patino v. City of Pasadena decisions. Section II.A explains how the Shelby County decision disempowered Section 5 preclearance and thrust Section 3 into the vanguard of the battle to protect voting rights. This section also provides background on post– Shelby County cases requesting Section 3 relief. Section II.B closely analyzes North Carolina State Conference of the NAACP v. McCrory , including the history of the challenged law, the district court’s decision, and the Fourth Circuit’s opinion finding intentional discrimination but opting not to impose Section 3 preclearance. Section II.C analyzes Patino v. City of Pasadena , which reached an opposite conclusion through similarly limited analysis. Section II.D discusses the potential consequences of the courts engaging in perfunctory analysis of plaintiffs’ requests for Section 3 preclearance and considers how these opinions highlight the need for analytical clarity with respect to this now-critical section of the VRA. A. Section 3 Preclearance as a Possible Response to Shelby County Voting rights advocates were distraught by the Court’s Shelby County decision.[footnote]See, e.g., Andrew Cohen, On Voting Rights, a Decision as Lamentable as Plessy or Dred Scott , Atlantic (June 25, 2013), http://www.theatlantic.com/national/archive/2013/06/on-voting-rights-a-decision-as-lamentable-as-plessy-or-dred-scott/276455/ [http://perma.cc/D75N-EBDZ] (decrying the majority for deciding “that overt racial discrimination in the nation’s voting practices is over and no longer needs all of the special federal protections it once did”); David Gans, The Roberts Court v. the Constitution: Column, USA Today (June 25, 2013), http://www.usatoday.com/story/opinion/2013/06/25/supreme-court-justice-roberts-column/2456969/ [http://perma.cc/5BC2-XKBN] (last updated June 26, 2013) (describing the Shelby County decision as “a colossal failure”).[/footnote] In the immediate aftermath of the decision, activists latched onto Section 3 preclearance as a way to mitigate the consequences of Section 5’s downfall.[footnote]See, e.g., Crum, supra note 18, at 1997–98 (pointing to Section 3 preclearance as a potential “secret weapon” in the event of Section 5 being declared unconstitutional); Adam Serwer, The Secret Weapon that Could Save the Voting Rights Act, MSNBC (July 8, 2013), http://www.msnbc.com/politicsnation/the-secret-weapon-could-save-the-voting [http://perma.cc/6MDN-8VFY] (last updated Oct. 2, 2013) (identifying Section 3 preclearance as “the primary tool for the Justice Department and voting rights activists seeking to patch the gaping hole left by the Supreme Court’s verdict”). Proponents of the Shelby County decision also pointed to Section 3 preclearance as a way to minimize the effects of losing preclearance under Section 5. See Voting Rights Act After the Supreme Court’s Decision in Shelby County : Hearing Before the Subcomm. on the Constitution and Civil Justice of the H. Comm. on the Judiciary, 113th Cong. 42 (2013) (testimony of Hans A. von Spakovsky, Senior Legal Fellow, Heritage Foundation) (arguing that reinstating or updating Section 4 is unnecessary in light of Section 3).[/footnote] Eric Holder, then the Attorney General, pledged that the DOJ would pursue Section 3 preclearance remedies to protect voters from discrimination after Shelby County .[footnote]See Eric Holder, U.S. Attorney Gen. of the U.S., Remarks at the National Urban League Annual Conference (July 25, 2013), http://www.justice.gov/opa/speech/ attorney-general-eric-holder-delivers-remarksat-national-urban-league-annual-conference [http://perma.cc/4QLV-ZVQW] (stating the DOJ planned “to fully utilize the law’s remaining sections to ensure that the voting rights of all American citizens are protected”).[/footnote] Fulfilling this promise, the DOJ requested Section 3 preclearance as a remedy in lawsuits brought against Alaska, Texas, and North Carolina.[footnote]Separately, Evergreen, Alabama was bailed into Section 3 preclearance via consent decree in 2014. See Allen Order, supra note 77, at 1. This case involved a challenge to the city’s proposed redistricting plan for the city council. The parties agreed to limited Section 3 preclearance for six years. Id.[/footnote] The case in Alaska settled,[footnote]In Alaska, the Native American Rights Fund filed a lawsuit against the state alleging that it had violated the VRA by “fail[ing] to provide oral language assistance to citizens whose first language is Yup’ik, the primary language of many Alaska natives.” Press Release, Native Am. Rights Fund, Alaska Natives Sue Over Voting Rights Violations in Dillingham and Wade Hampton Regions (July 19, 2013), http://narf.org/bloglinks/ section_203_press_release.pdf [http://perma.cc/JS2X-YN24]. The plaintiffs requested for Alaska to be bailed into Section 3 preclearance for all future voting changes. Amended Complaint at 19, Toyukak v. Treadwell, No. 3:13-cv-00137 (D. Alaska Sept. 30, 2015), 2014 WL 11152079 (requesting Section 3 preclearance for changes to any “voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting”). After a two-week trial, the district court issued a partial order finding a violation of Section 2 and taking “under advisement [the] Plaintiffs’ constitutional claim under the Fourteenth and Fifteenth Amendments.” Stipulated Judgment and Order at 9, Toyukak , No. 3-13-cv-00137 (D. Alaska Sept. 30, 2015), 2015 WL 11120474. However, the request for Section 3 relief was dropped as part of the settlement agreement. Id. at 5 (“[I]n exchange for the terms of this Order, Plaintiffs agree to dismiss their claim under the Fourteenth and Fifteenth Amendments to the United States Constitution and their request for relief under Section 3(c) of the Voting Rights Act.”).[/footnote] and the Fourth Circuit denied Section 3 relief in McCrory ,[footnote]See infra section II.B.[/footnote] but Texas may still be bailed into Section 3 preclearance. In 2011, Texas passed Senate Bill (SB) 14, which created what would arguably be the nation’s strictest voter ID requirements.[footnote]S.B. 14, 82d Leg., Reg. Sess. (Tex. 2011); see also Texas NAACP v. Steen (Consolidated with Veasey v. Abbott), Brennan Ctr. for Justice, http://www.brennancenter.org /legal-work/naacp-v-steen [http://perma.cc/SR3U-9N56] (last updated Sept. 1, 2017).[/footnote] The bill’s implementation was blocked by a D.C. District Court under Section 5 of the VRA, but was revived by the Texas legislature within hours of the Shelby County decision.[footnote]See Brennan Ctr. for Justice, supra note 96.[/footnote] Voting rights groups, joined by the DOJ,[footnote]The DOJ has since changed its position. Under the direction of Attorney General Jeff Sessions, the DOJ now argues that it is unnecessary to bail Texas back into preclearance under Section 3. Fernandez & Lichtblau, supra note 22.[/footnote] sued to block implementation of SB 14 under the VRA. They asked, inter alia, for Texas to be bailed back into preclearance under Section 3.[footnote]The plaintiffs made a general request for Section 3 relief rather than suggesting a tailored imposition of preclearance. Veasey-LULAC Plaintiffs’ Second Amended Complaint at 32, Veasey v. Perry, 71 F. Supp. 3d 627 (S.D. Tex. 2014) (No. 2:13-cv-193), 2013 WL 11259532 (asking the court to “[r]etain jurisdiction and require Texas to obtain preclearance pursuant to Section 3(c) of the Voting Rights Act, 42 U.S.C. § 1973a(c) with respect to its voting practices and procedures”); see infra note 192 (discussing whether a request for broad Section 3 preclearance is counterproductive).[/footnote] After a bench trial, the district court found that SB 14 had a discriminatory effect, was enacted with discriminatory purpose, and constituted a violation of the Fourteenth and Fifteenth Amendments.[footnote] Veasey , 71 F. Supp. 3d at 698–703.[/footnote] The Fifth Circuit, sitting en banc, affirmed the district court’s holding that the law violated Section 2 of the VRA (i.e., the law had a discriminatory effect) but reversed the district court’s finding of discriminatory purpose and remanded the case for a redetermination of discriminatory intent.[footnote]Veasey v. Abbott, 830 F.3d 216, 272 (5th Cir. 2016) (en banc). This oversimplifies the procedural history a bit. After the district court’s decision, the Fifth Circuit granted Texas’s request to stay the injunction, Veasey v. Perry, 769 F.3d 890 (5th Cir. 2014), and the Supreme Court denied the plaintiffs’ motion to vacate the stay. Veasey v. Perry, 135 S. Ct. 9 (2014) (mem.). The Fifth Circuit then granted plaintiffs’ motion to rehear the case en banc, which resulted in the opinion cited here. For additional background on the Fifth Circuit’s decision, see Jim Malewitz, Texas Voter ID Law Violates Voting Rights Act, Court Rules, Tex. Trib. (July 20, 2016), http://www.texastribune.org/2016/07/20/appeals-court-rules-texas-voter-id/ [http://perma.cc/4F77-NSE6].[/footnote] On remand, the district court again found that Texas acted, “at least in part, with a discriminatory intent in violation of the Voting Rights Act . . . .”[footnote]Veasey v. Abbott, No. 2:13-CV-193, 2017 WL 1315593, at *1 (S.D. Tex. Apr. 10, 2017) (citation omitted).[/footnote] While the litigation was ongoing, Texas passed SB 5, a new version of the voter ID law.[footnote] See Veasey v. Abbot, No. 2:13-CV-193, 2017 WL 3620639, at *2 n.6 (S.D. Tex. Aug. 23, 2017) (discussing SB 5), appeal docketed, No. 17-40884 (5th Cir. Aug. 24, 2017).[/footnote] However, the district court also blocked implementation of that law, holding in part that “the Texas Legislature’s subsequent action in passing SB 5—after years of litigation to defend SB 14—does not govern a finding of [discriminatory] intent with respect to the previous enactment.”[footnote]Id. at *2, *11–12 (“Along with continued provisions that contribute to the discriminatory effects of the photo ID law, [the new law] on its face embodies some of the indicia of discriminatory purpose [of SB 14] . . . .”); see also Paul J. Weber, Federal Judge Again Tosses Out Texas Voter ID Law, Wash. Post (Aug. 23, 2017), http://www.washingtonpost.com /national/federal-judge-again-throws-out-texas-voter-id-law/2017/08/23/edcfb028-884d-11e7-96a7-d178cf3524eb_story.html (on file with the Columbia Law Review ).[/footnote] In the near future, the court will decide whether to impose Section 3 preclearance on Texas,[footnote]Veasey v. Abbott, No. 2:13-CV-193, at 2 (S.D. Tex. June 20, 2017) (on file with the Columbia Law Review ).[/footnote] but at this point it is unclear what standard the court will use to determine whether to grant Section 3 relief.[footnote]Cf. Veasey v. Abbott, 71 F. Supp. 3d 627, 708 (S.D. Tex. 2014) (promising to schedule proceedings to “address the procedures to be followed for considering Plaintiffs’ request for relief under Section 3(c) of the Voting Rights Act”).[/footnote] B. North Carolina State Conference of the NAACP v. McCrory The lawsuit over Texas’s SB 14 exemplifies how Section 3, even though limited to cases involving discriminatory intent, can potentially play a significant role in protecting the right to vote after Shelby County . It is more important than ever to have an easily applied judicial standard for considering imposition of Section 3 preclearance. The following sections discuss in-depth two missed opportunities to create just such a standard: North Carolina State Conference of the NAACP v. McCrory [footnote]831 F.3d 204 (4th Cir. 2017).[/footnote] and Patino v. City of Pasadena .[footnote]230 F. Supp. 3d 667 (S.D. Tex. 2017).[/footnote] This section analyzes McCrory , in which the Fourth Circuit declined to thoroughly engage with the question of Section 3 relief. Section II.B.1 reviews the background of the law at issue in the case, and section II.B.2 looks at the judicial treatment of the law by the district court and Fourth Circuit. 1. Background of North Carolina HB 589 . — In 2010—for the first time in 112 years—Republicans won a majority of the seats in both houses of the North Carolina state legislature.[footnote]William Wan, Inside the Republican Creation of the North Carolina Voting Bill Dubbed the ‘Monster’ Law, Wash. Post (Sept. 2, 2016) http://www.washingtonpost.com/ politics/courts_law/inside-the-republican-creation-of-the-north-carolina-voting-bill-dubbed-the-monster-law/2016/09/01/79162398-6adf-11e6-8225-fbb8a6fc65bc_story.html (on file with the Columbia Law Review ) [hereinafter Wan, Monster Law] (detailing the initiation, adoption, and aftermath of North Carolina’s voting bill).[/footnote] Two years later, Republican Governor Pat McCrory assumed office, giving Republicans hegemonic power in the state.[footnote]Id.[/footnote] Shortly thereafter, legislative aides began requesting data breaking down the use of various voting practices by race.[footnote]Id.[/footnote] The requests covered early voting and out-of-precinct voting and also sought to determine the types of photo ID commonly held by people of different races.[footnote]Id.[/footnote] In early 2013, the North Carolina House of Representatives passed the first version of House Bill (HB) 589, which focused solely on voter IDs.[footnote]Id.[/footnote] Three months later, the Supreme Court handed down its decision in Shelby County .[footnote]Id.[/footnote] The very same day, Republican legislators indicated they would be introducing a more comprehensive version of HB 589.[footnote]Id.[/footnote] The promised update was unveiled shortly thereafter: The new version eliminated same-day registration, out-of-precinct voting, and preregistration;[footnote]Preregistration allowed “16- and 17-year-olds, when obtaining driver’s licenses or attending mandatory high school registration drives, to identify themselves and indicate their intent to vote[,]” which “allowed County Boards of Elections to verify eligibility and automatically register eligible citizens once they reached eighteen.” N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 217 (4th Cir. 2016) (citations omitted).[/footnote] cut back on early voting; and detailed the specific types of photo ID to be accepted at polling stations.[footnote]Wan, Monster Law, supra note 109.[/footnote] In the span of five days—with only twenty minutes of public testimony—the bill was passed by both houses of the legislature and signed into law.[footnote]H.B. 589, 2013 Gen. Assemb., Reg. Sess. (N.C. 2013).[/footnote] 2. Judicial Analysis of the North Carolina Voting Bill . — Voting rights advocacy groups, along with the DOJ, quickly challenged HB 589.[footnote]Wan, Monster Law, supra note 108. [/footnote] They alleged that HB 589 had discriminatory effects in violation of Section 2 of the VRA and that the North Carolina General Assembly passed the bill with a discriminatory purpose and therefore should be bailed back into preclearance under Section 3 of the VRA.[footnote]First Amended Complaint at 38–39, N.C. State Conference of the NAACP v. McCrory, 182 F. Supp. 3d 320 (M.D.N.C. 2016) (No. 1:13-cv-658), 2013 WL 6253645; see also United States’ Opposition to Defendant’s Motion to Dismiss Voter Photo ID Claims at 5–8, McCrory , 182 F. Supp. 3d 320 (No. 1:13-CV-658), 2015 WL 4935020 (arguing that Section 3 relief should be granted because HB 589 was passed with discriminatory intent).[/footnote] The district court upheld the law in its entirety, finding that the law did not have a discriminatory result[footnote] McCrory , 182 F. Supp. 3d at 486–88.[/footnote] and was not passed with discriminatory intent.[footnote]Id. at 488–503.[/footnote] The Fourth Circuit disagreed: “[No] legislature in the Country [] has ever done so much, so fast, to restrict access to the franchise.”[footnote]N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 228 (4th Cir. 2016).[/footnote] The Fourth Circuit’s analysis of HB 589 focused on the “surgical precision” with which “the new provisions target African Americans.”[footnote]Id. at 214 (“[T]he legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.”).[/footnote] In contrast to the district court’s assertion that there was “little evidence of official discrimination [by the North Carolina General Assembly] since the 1980s,”[footnote] McCrory , 182 F. Supp. 3d at 497.[/footnote] the Fourth Circuit gave significant weight to North Carolina’s long history of discrimination and suppression of the minority vote, contrasted with the improved voter turnout among people of color when North Carolina was subject to Section 5 preclearance.[footnote] McCrory , 831 F.3d at 215, 223.[/footnote] The Fourth Circuit rejected as “clearly erroneous” the district court’s finding that HB 589 was not passed with a discriminatory purpose.[footnote]Id. at 223.[/footnote] The Fourth Circuit considered the same factors identified by the district court but objected to the district court’s analysis for each finding.[footnote]Id. at 223–33.[/footnote] The Fourth Circuit found that North Carolina had a long history of impermissible, race-based voter suppression (including numerous instances of attempted discrimination since the 1980s);[footnote]Id. at 223–25.[/footnote] that the district court “refus[ed] to draw the obvious inference” from the “devastating . . . sequence of events” leading up to the passage of HB 589;[footnote]Id. at 227.[/footnote] and that the district court erred in finding that North Carolina’s decision to target voting mechanisms used disproportionally by minority voters did not “significantly favor a finding of discriminatory purpose.”[footnote]Id. at 230 (internal quotation marks omitted) (quoting N.C. State Conference of the NAACP v. McCrory, 182 F. Supp. 3d 320, 497 (M.D.N.C. 2016)).[/footnote] The Fourth Circuit finally held that the North Carolina General Assembly acted with discriminatory intent by designing HB 589 to curtail only the voting practices disproportionately used by people of color, thus violating the Fourteenth and Fifteenth Amendments.[footnote]Id. at 238.[/footnote] The appellants asked the Fourth Circuit to declare the challenged provisions of HB 589 unconstitutional, to permanently enjoin said provisions, and to bail North Carolina into Section 3 preclearance.[footnote]Joint Brief of Plaintiffs-Appellants at *76–77, McCrory , 831 F.3d 204 (No. 16-1468 (L)), 2016 WL 2942422.[/footnote] The court granted the first two of these requests.[footnote] McCrory , 831 F.3d at 241.[/footnote] C. Patino v. City of Pasadena This section reviews Patino v. City of Pasadena , in which a district court found that Pasadena, Texas, intentionally discriminated against Latino citizens by diluting the Latino vote through redrawing the districts for city council elections. As a result, the court ordered preclearance for future changes to voting districts.[footnote]230 F. Supp. 3d 667 (S.D. Tex. 2017). The court issued its order after “a seven-day bench trial, at which 16 witnesses testified and the court admitted 468 exhibits into evidence.” Id. at 674. For additional explanation of the circumstances surrounding Patino , see generally Mike Snyder, Judge’s Ruling in Voting Rights Case Not Kind to Pasadena’s Mayor, Hous. Chron. (Jan. 9, 2017), http://www.houstonchronicle.com/news/columnists/greater-houston/ article/Judge-s-ruling-in-voting-rights-case-not-kind-to-10845980.php [http://perma.cc/EFE4-M5L3] (last updated Jan. 10, 2017).[/footnote] Pasadena is segregated, a residual effect of “[r]estrictive housing covenants . . . in place until the 1940s.”[footnote] Patino , 230 F. Supp. 3d at 684.[/footnote] North Pasadena is “predominately Latino, older, and less prosperous,” and South Pasadena is “predominately Anglo, newer, and wealthier.”[footnote]Id. at 678.[/footnote] Since 1992, the Pasadena City Council has comprised eight, single-member districts.[footnote]Id. at 681.[/footnote] The council shares governing power with the mayor, who votes on issues before the council.[footnote]Id.[/footnote] In the May 2013 city council election, the registered voters in four of eight districts were majority Latino, and a fifth district was forty-five percent Latino.[footnote]Id. at 690.[/footnote] On June 27, 2013, two days after the Supreme Court’s Shelby County decision, Mayor Johnny Isbell called for the city council to form a committee to consider bond proposals, which he subsequently converted into a committee to consider redistricting.[footnote]Id. at 681.[/footnote] He proposed several maps that combined single-member districts and at-large districts.[footnote]Id. Because at-large districts “allow 50 percent of voters to control 100 percent of seats, [they] . . . typically result in racially and politically homogenous elected bodies.” At-Large Election Systems, FairVote, http://archive.fairvote.org/ ?page=766 [http://perma.cc/88TS-A4H8] (last updated Dec. 2009). Prior to Shelby County , the DOJ regularly blocked proposals to switch from single-member to at-large districts in Texas. Patino , 230 F. Supp. 3d at 697–98.[/footnote] Mayor Isbell cast the tiebreaking vote in favor of holding a special election to convert the eight single-member city council districts into six single-member districts and two at-large districts.[footnote] Patino , 230 F. Supp. 3d at 681–82. This vote was held even though the committee had decided against the redistricting proposal. Id. at 681.[/footnote] Council members representing districts in North Pasadena cast the four votes against the proposal.[footnote]Id. at 701.[/footnote] The court found that the mayor and the city improperly used city resources to campaign for the redistricting proposal, including by directing city grants to neighborhoods in South Pasadena.[footnote]Id. at 702–03 (reviewing use of city funds to campaign for the redistricting proposal and comparing the $99,532.22 directed to South Pasadena during the campaign period to the $776.23 directed to North Pasadena over the same time).[/footnote] The court also found that the mayor and other Pasadena officials “used partisan terms as proxies for race or racial terms,” implying that the redistricting plan was necessary to prevent Pasadena from “fall[ing] under the power of Latinos, coded as ‘Democrats.’”[footnote]Id. at 703–04.[/footnote] The redistricting proposal was approved after a “racially polarized” vote of 3,292 in favor and 3,213 against.[footnote]Id. at 704. “Latinos opposed the proposal with an estimated 99.6% of their votes.” Id. at 682.[/footnote] The district court compared the probable results under the old, “all single-member” plan to the new “single-member plus at-large” plan and found that the new plan diluted the Latino vote in Pasadena.[footnote]Id at 706–08, 718.[/footnote] After finding that the redistricting had a discriminatory effect, the court applied the Arlington Heights factors and found that the city had acted with discriminatory intent.[footnote]Id. at 721–26.[/footnote] D. Two Decisions, Four Sentences of Analysis: Missed Opportunities to Set a New Standard for Section 3 Preclearance Although they reached opposite conclusions, neither the Fourth Circuit in McCrory nor the district court in Patino wasted much ink in their respective analyses of the merits of Section 3 preclearance. The Fourth Circuit needed only two sentences to reject Section 3 relief: “[W]e decline to impose any of the discretionary additional relief available under § 3 of the Voting Rights Act, including imposing poll observers during elections and subjecting North Carolina to ongoing preclearance requirements. Such remedies ‘[are] rarely used’ and are not necessary here in light of our injunction.”[footnote]N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 241 (4th Cir. 2016) (alteration in original) (citation omitted) (quoting Conway Sch. Dist. v. Wilhoit, 854 F. Supp. 1430, 1442 (E.D. Ark. 1994)). The court plucked two words from Conway School District v. Wilhoit to make its case that Section 3 preclearance was an inappropriate remedy. The full sentence might support the opposite conclusion: “The preclearance remedy is rarely used, only being utilized in such a ‘systematic and deliberate’ case as Jeffers .” Wilhoit , 854 F. Supp. at 1442. Much of the court’s opinion in McCrory is dedicated to showing how the North Carolina legislature systematically and deliberately tailored HB 589 to suppress the voting power of people of color. McCrory , 831 F.3d at 223–26.[/footnote] The Patino court, on the other hand, needed only two sentences to grant Section 3 relief: Because the court finds that Pasadena officials intentionally discriminated against Latinos in diluting their voting strength, the court grants the plaintiffs’ request under § 3(c) to require Pasadena to submit future changes to its electoral map and plan to the Department of Justice for preclearance. The court also grants the request for an order under § 3(c) to retain jurisdiction to review, before it is enforced, any “voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect” from the map and plan in use in the May 2013 election.[footnote] Patino , 230 F. Supp. 3d at 729–30. Perhaps the court was persuaded by the mandatory language of Section 3 that it was required to impose preclearance upon a finding of discrimination, see supra note 85, but this was not explicitly stated in the opinion.[/footnote] The limited analyses in both McCrory and Patino leave future litigants and judges without guidance on the propriety and availability of Section 3 preclearance upon a finding of intentional discrimination. By declining to engage in meaningful analysis about whether to bail North Carolina into preclearance under Section 3, the Fourth Circuit missed a key opportunity to provide needed clarity on how to appropriately interpret a historically ignored statute that is likely to take on outsized importance in the coming years. The Patino opinion did little to rectify this omission; it does not provide proponents of Section 3 with guidelines on how to frame the argument for Section 3 preclearance, and its lack of justification for preclearance leaves it vulnerable to attack from parties opposing Section 3 relief. Judicial opinions discussing Section 3 preclearance are rare, and future litigants will have no choice but to grapple with these two decisions granting and denying Section 3 relief. The perfunctory analyses of Section 3 within McCrory and Patino leave courts with no guidance on whether to impose Section 3 preclearance other than a single twenty-five-year-old district court opinion. Part III of this Note seeks to address this problem by filling in the gap and providing a workable judicial standard for considering Section 3 preclearance in the future. III. Filling in the Gap: McCrory , Patino , and Imposing Section 3 Preclearance in a Post– Shelby County World The McCrory and Patino courts were the first to have the opportunity to create a new standard for analyzing claims for Section 3 relief in the post– Shelby County era, but they certainly will not be the last.[footnote]See, e.g., Veasey v. Abbott, 830 F.3d 216, 272 (5th Cir. 2016) (en banc) (remanding for new consideration of discriminatory purpose).[/footnote] Section 3 has taken on increased significance as the only remaining conduit for bailing jurisdictions into preclearance, and these two cases represent a missed opportunity to introduce a reasonable, easily applied framework for considering Section 3 relief. This Part seeks to fill in the gap left by the McCrory and Patino opinions; it imagines what the missing analyses of the merits of Section 3 preclearance may have looked like and then it applies this framework to the facts of each case. Section III.A.1 argues that any judicial framework for imposing preclearance should be grounded in the Supreme Court’s logic for upholding preclearance in South Carolina v. Katzenbach .[footnote]383 U.S. 301 (1966), abrogated by Shelby County v. Holder, 133 S. Ct. 2612, 2627–28 (2013).[/footnote] Section III.A.2 reexamines Jeffers v. Clinton and shows how that opinion—without actually citing Katzenbach —follows a nearly identical logical analysis of imposing preclearance. Section III.B proposes a three-pronged judicial standard for imposing Section 3 preclearance and discusses how it should be tailored. Section III.C returns to the facts of McCrory and Patino , applies the three-pronged standard proposed in section III.B to each, and explains why Section 3 preclearance was appropriate in both cases. Section III.C also applies the proposed standard to the ongoing case of Veasy v. Abbott . A. Returning to What Works: How South Carolina v. Katzenbach Serves as a Guide for Imposing Section 3 Preclearance The obvious prerequisite for any preclearance framework is that it must survive scrutiny from a Supreme Court that has shown considerable skepticism of preclearance as a preemptive remedy for discriminatory voting mechanisms.[footnote]See, e.g., Shelby County , 133 S. Ct. at 2618 (describing Sections 4(b) and 5 of the VRA as “extraordinary measures” and “strong medicine”).[/footnote] The Court in Shelby Country was wary of the “substantial federalism costs” of Section 5 preclearance; the fact that Section 5 preclearance applied to only some of the states threatened the longstanding principle of “equal sovereignty” among the states.[footnote]Id. at 2621 (internal quotation marks omitted) (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202–03 (2009)).[/footnote] However, even though the Court was concerned about the implications of Section 5 preclearance, it struck down only the coverage formula in Section 4(b) and left Section 5 intact.[footnote]Id. at 2631.[/footnote] The decision to refrain from also invalidating Section 5 serves as a tacit acknowledgement that preclearance may still be necessary in certain situations.[footnote]Cf. id. (explaining that “Congress may draft another formula” for requiring certain jurisdictions to preclear changes to voting mechanisms).[/footnote] But any judicial framework for imposing preclearance under Section 3 must meet the Shelby County criterion: A court may impose preclearance only if the potential consequences of failing to do so outweigh preclearance’s costs on principles of federalism and equal sovereignty. One logical way to ensure that the proposed framework for Section 3 preclearance does not run afoul of the Supreme Court is to base it on the Court’s own rationale, explained in South Carolina v. Katzenbach ,[footnote]383 U.S. at 314.[/footnote] for upholding preclearance in the first place. Writing in 1966, the Court in Katzenbach found preclearance justifiable because: Voting suits are unusually onerous to prepare, sometimes requiring as many as 6,000 man-hours spent combing through registration records in preparation for trial. Litigation has been exceedingly slow, in part because of the ample opportunities for delay afforded voting officials and others involved in the proceedings. Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests designed to prolong the existing disparity between white and [black] registration.[footnote]Id. Even though Shelby County abrogated Katzenbach insomuch as it struck down the coverage formula that Katzenbach found acceptable, the majority opinion in Shelby County acknowledged that preclearance would still be valid if “exceptional conditions . . . exist justifying such an ‘extraordinary departure from the traditional course of relations between the States and the Federal Government.’” Shelby County , 133 S. Ct. at 2631 (quoting Presley v. Etowah Cty. Comm’n, 502 U.S. 491, 500–01 (1992)).[/footnote] This rationale, that preclearance is “justified” when it “address[es] ‘voting discrimination where it persists on a pervasive scale,’” survived the Shelby County decision and forms the foundation of the framework proposed by this section.[footnote] Shelby County , 133 S. Ct. at 2620 (quoting Katzenbach , 383 U.S. at 308).[/footnote] Section III.A.1 examines the Katzenbach Court’s rationale for upholding preclearance. Section III.A.2 finds the spirit of Katzenbach within the Jeffers court’s rationale for bailing Arkansas into preclearance. Finally, section III.A.3 gleans from these two decisions a judicial standard for imposing Section 3 preclearance that may survive judicial scrutiny after Shelby County . 1. South Carolina v. Katzenbach and the Justification for Preclearance . — The Court in Katzenbach upheld the VRA’s preclearance requirement because it found that individual lawsuits against discriminatory voting mechanisms frequently had little success in stemming the tide of discrimination.[footnote]See Katzenbach , 383 U.S. at 328 (“Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting . . . .”).[/footnote] The Court observed many states following a pattern of changing tactics in response to unfavorable judicial decisions in order to perpetuate a status quo that prevented people of color from exercising their right to vote.[footnote]Id. at 310–11 (listing the numerous methods states employed to prevent people of color from voting); see also id. at 314 (“[W]hen favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees . . . .”).[/footnote] The Court noted that continuously challenging each new technique of voter suppression was time consuming and forced people of color to live under these discriminatory laws while they were being challenged.[footnote]See id. at 315 (discussing voting-discrimination litigation in Selma, Alabama that took four years to come to a conclusion).[/footnote] In light of these findings, the Court upheld the VRA, stating: Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting [and] . . . [a]fter enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.[footnote]Id. at 328.[/footnote] Returning later to the specific requirement of preclearance, the Court acknowledged that requiring jurisdictions to preclear all changes to voting mechanisms was “an uncommon exercise of congressional power,”[footnote]Id. at 334.[/footnote] but nonetheless found it to be appropriate because “Congress had reason to suppose that . . . States might try similar [discriminatory changes to voting mechanisms] in the future.”[footnote]Id. at 335.[/footnote] In sum, the Court in Katzenbach believed that preclearance was an appropriate remedy when individual lawsuits brought under Section 2 of the VRA could not easily address discriminatory changes to voting mechanisms and when there was reason to believe that, upon defeat, an intentionally discriminating jurisdiction would try again to prevent people of color from exercising the right to vote. The following section returns to Jeffers v. Clinton and explains how the court’s analysis in that case about whether to bail Arkansas into preclearance under Section 3 of the VRA neatly tracks the Supreme Court’s justification for preclearance as a remedy in Katzenbach . 2. Jeffers on Katzenbach : Preclearance as a Response to the Inadequacy of Individual Lawsuits . — Section I.B.2 touched upon the framework the court in Jeffers v. Clinton used to justify imposing Section 3 preclearance on Arkansas. Again, the factors considered in Jeffers were: Have the violations been persistent and repeated? Are they recent or distant in time? Are they the kinds of violations that would likely be prevented, in the future, by preclearance? Have they already been remedied by judicial decree or otherwise? How likely are they to recur? Do political developments, independent of this litigation, make recurrence more or less likely?[footnote]Jeffers v. Clinton, 740 F. Supp. 585, 601 (E.D. Ark. 1990).[/footnote] The court applied these factors to Arkansas’s decision to “enact[] new majority-vote requirements for municipal offices, in an effort to frustrate black political success in elections traditionally requiring only a plurality to win.”[footnote]Id. at 586.[/footnote] The Jeffers court did not specifically cite South Carolina v. Katzenbach , but the above factors trace the logic Katzenbach followed in upholding Section 5 preclearance. Katzenbach found preclearance necessary because offending jurisdictions persistently looked for ways to evade judicial decrees and continually infringed upon people of color’s voting rights.[footnote] Katzenbach , 383 U.S. at 314 (“[W]hen favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees . . . .”).[/footnote] Jeffers looked for substantively the same thing by asking if violations were repeated, if they were likely to recur, and if unrelated political developments made new violations more or less likely.[footnote] Jeffers , 740 F. Supp. at 601.[/footnote] The Katzenbach Court believed that preclearance was necessary because individual litigation proved ineffective at fighting voter suppression.[footnote] Katzenbach , 383 U.S. at 313 (“Congress has repeatedly tried to cope with the problem by facilitating case-by-case litigation against voting discrimination[,] . . . [but] these new laws have done little to cure the problem of voting discrimination.”).[/footnote] Jeffers evidenced a similar concern by querying whether violations have already been remedied by judicial decree and whether similar violations would be prevented by preclearance.[footnote] Jeffers , 740 F. Supp. at 602.[/footnote] Additionally, both opinions recognized that “substantial federalism costs”[footnote]Shelby County v. Holder, 133 S. Ct. 2612, 2621 (2013) (internal quotation marks omitted) (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202 (2009)).[/footnote] were inevitable when forcing jurisdictions to preclear changes to voting mechanisms.[footnote]See Katzenbach , 383 U.S. at 334 (describing Section 5 of the VRA as “an uncommon exercise of congressional power”); Jeffers , 740 F. Supp. at 601 (“[W]e have in mind the strong . . . interest of the defendants in maintaining the sovereignty of the State . . . .”).[/footnote] However, both decisions found that, given sufficiently severe violations of the Fifteenth Amendment, protecting the right to vote for people of color outweighed even significant concerns of infringing upon state sovereignty.[footnote] Katzenbach , 383 U.S. at 334 (“[T]he Court has recognized that exceptional conditions can justify legislative measures not otherwise appropriate.”); Jeffers , 740 F. Supp. at 601 (“The whole purpose of the Fourteenth and Fifteenth Amendments and of the Voting Rights Act is to override state action, and undue deference to state sovereignty cannot be permitted to thwart this purpose.”).[/footnote] Although Jeffers did not explicitly look to Katzenbach for guidance, there is little daylight between the two opinions in how they analyze whether preclearance is necessary. Therefore, this Note will follow their lead in proposing a judicial standard for imposing Section 3 preclearance. Section III.B, below, lays out a standard that the McCrory and Patino courts could have used to determine the appropriateness of Section 3 preclearance. Section III.C then applies this standard to the facts of both cases. B. A Standard for Imposing Section 3 Preclearance This section proposes a practical judicial standard for imposing Section 3 preclearance, distilled from Katzenbach and Jeffers and adapted to ensure that imposition of Section 3 preclearance survives constitutional scrutiny. This standard looks at three factors. Section III.B.1 sets out an initial requirement that the violation be sufficiently severe to overcome federalism concerns. Section III.B.2 argues that a court should grant Section 3 relief when repeat violations are likely absent preclearance. Section III.B.3 discusses how a court should weigh the relative difficulty of correcting future violations through individual lawsuits under Section 2 of the VRA when considering Section 3 preclearance. Finally, section III.B.4 explains that when a court grants Section 3 relief, it should be appropriately tailored to respond to the violation at hand. 1. The Violation Must Be Sufficiently Severe to Justify Infringing on State Sovereignty . — A jurisdiction should not be bailed into preclearance absent a sufficiently severe infringement on the voting rights of a particular group. This factor is necessary given the Supreme Court’s unease with the burdens preclearance places on the “fundamental principle of equal sovereignty” among the states.[footnote] Shelby County , 133 S. Ct. at 2622 (internal quotation marks omitted) (quoting Nw. Austin , 557 U.S. at 203).[/footnote] Some level of severity may be presumed, however, because a court may consider imposing Section 3 preclearance only when it finds a jurisdiction intentionally discriminated against a protected class.[footnote]See supra section I.B.[/footnote] Preclearance in response to a specific constitutional violation is a far cry from preclearance based on a fifty-year-old coverage formula.[footnote]See supra section I.A.2. Preclearance that is tailored to the specific constitutional violation found by the court further eases federalism concerns. See supra section I.B.1.[/footnote] For these reasons, a constitutional violation should carry with it a presumption of sufficient severity; this factor serves as a shibboleth to weed out any obviously minor instances of intentional discrimination with regard to voting rights. 2. Section 3 Preclearance Should Be Imposed if Future Constitutional Violations Are Likely . — A court should bail a jurisdiction into preclearance if the court determines that the jurisdiction is likely to violate either the Fourteenth or Fifteenth Amendment again in the future.[footnote]One might argue that once a court finds that a jurisdiction intentionally discriminated to limit certain groups’ ability to vote, there should be a presumption that it will continue to act with that discriminatory intent in the future, since people who intentionally discriminate against people of color are unlikely to change their opinions just because a court told them that discrimination was wrong. One famous example of this is how, after the Supreme Court outlawed race-based preemptory strikes, Batson v. Kentucky, 476 U.S. 79 (1986), Philadelphia Assistant District Attorney Jack McMahon appeared in a training video encouraging new district attorneys to continue to strike people of color from juries but to construct a nondiscriminatory façade to remain on the lawful side of Batson . See L. Stuart Ditzen, Linda Loyd & Mark Fazlollah, Avoid Poor Black Jurors, McMahon Said, Phila. Inquirer, Apr. 1, 1997, at A1 (on file with the Columbia Law Review) . The full training video is available at Jack McMahon, DATV Productions, Jury Selection with Jack McMahon All 1 Hour and 1 Minute, http://www.youtube.com/watch?v=Ag2I-L3mqsQ (on file with the Columbia Law Review ) (last visited Aug. 8, 2017).[/footnote] This factor was given considerable weight by both Katzenbach and Jeffers .[footnote]See supra notes 169–170 and accompanying text.[/footnote] The main purpose of preclearance is to prevent jurisdictions that have discriminated in the past from discriminating again in the future. Therefore, a finding that a jurisdiction is likely to commit new constitutional violations should weigh strongly in favor of imposing preclearance. A jurisdiction with a long history of discrimination is more likely to commit future constitutional violations than a jurisdiction without such a history,[footnote]See supra note 179; see also South Carolina v. Katzenbach, 383 U.S. 301, 314 (1966) (“[W]hen favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees . . . .”).[/footnote] so a court should look at past instances of discrimination in a given jurisdiction.[footnote]If the jurisdiction in question was subject to Section 5 preclearance prior to the Shelby County decision, the court should also consider proposed voting changes that were rejected by the DOJ. See N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 224 (4th Cir. 2016) (noting the DOJ had issued over fifty objection letters to proposed voting changes in North Carolina between 1980 and 2013). Otherwise, many jurisdictions would erroneously appear to have no recent history of discrimination.[/footnote] The court should consider both constitutional violations and violations of Section 2 of the VRA.[footnote]Even though Section 2 does not require discriminatory intent, see supra section I.A.1, voting laws that have discriminatory effects can be indicative of a tendency to discriminate and should also factor in the court’s analysis, especially if they are numerous.[/footnote] The court should also give greater weight to more recent instances of discrimination and not rely too heavily on violations that occurred many years ago.[footnote]See Shelby County v. Holder, 133 S. Ct. 2612, 2628–29 (2013) (decrying Congress’s use of “decades-old data” to justify the VRA coverage formula); see also Veasey v. Abbott, 830 F.3d 216, 232 (5th Cir. 2016) (en banc) (“[U]nless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value.” (internal quotation marks omitted) (quoting McCleskey v. Kemp, 481 U.S. 279, 298 n.20 (1987))).[/footnote] Clearly, a greater number of past violations will be more determinative than a lesser number, but any recent history of discrimination should tilt the balance toward imposing preclearance.[footnote] Jeffers disagrees, stating that “more than one violation must be shown” in order to impose preclearance. Jeffers v. Clinton, 740 F. Supp. 585, 600 (E.D. Ark. 1990). However, if the other factors of this standard weigh in favor of granting Section 3 relief, one serious attempt to disempower people of color should be enough to justify imposing preclearance.[/footnote] A court may also look to whether circumstances surrounding the challenged violation have changed to such an extent that repeat violations are more or less likely.[footnote]As a starting point, the court should acknowledge that the Shelby County decision represents a change of circumstances that makes constitutional violations more likely in jurisdictions that had previously been subject to Section 5 preclearance.[/footnote] If a jurisdiction chooses to intentionally discriminate against people of color, it is reasonable to assume that it may do so again absent changed circumstances or incentives that would make a new offense less likely.[footnote]See supra note 179; cf. Nat’l Research Council, Measuring Racial Discrimination 56 (Rebecca M. Blank et al. eds., 2004) (explaining that when people receive support for discriminatory actions they often continue to discriminate).[/footnote] This consideration sounds in Jeffers , which asked whether “political developments, independent of [the current] litigation, make recurrence more or less likely,”[footnote] Jeffers , 740 F. Supp. at 601.[/footnote] and is also supported by Katzenbach , which noted that states sanctioned for discrimination could be reasonably expected to “try similar maneuvers in the future in order to evade . . . remedies for voting discrimination.”[footnote]South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966).[/footnote] But significant changes to the circumstances surrounding a discriminatory voting law may weigh against imposing Section 3 preclearance. If the proponents of a particular voting change lost a subsequent election, for example, future violations may be less likely, making Section 3 preclearance less necessary. 3. Section 3 Preclearance Is Merited when Challenging Violations Through Individual Lawsuits Would Be “Onerous.” — Third and finally, a court should favor imposing preclearance when future potential discriminatory actions would be difficult to overcome with individual lawsuits. This factor stems from Katzenbach ’s concern with how the extended nature of litigation forced victims of discrimination to endure under discriminatory laws.[footnote]Id. at 315.[/footnote] Consequently, a court should consider whether future violations would necessitate complex litigation. If so, this should weigh in favor of imposing preclearance. For example, a straightforward lawsuit against an individual official who is applying a facially nondiscriminatory law in a discriminatory way does not invite preclearance in the same way as a concerted legislative effort to dilute the voting power of people of color.[footnote]When tailoring the scope of Section 3 preclearance to impose on Arkansas, Jeffers distinguished between “explicit elections laws or practices” and “individual actions by officials charged with administering laws and practices neutral on their face,” finding that preclearance was not appropriate for the latter. Jeffers , 740 F. Supp. at 601.[/footnote] 4. Section 3 Preclearance Should Be Appropriately Tailored . — If a court considers the above factors and decides to impose Section 3 preclearance on a jurisdiction, the next step is to appropriately tailor the scope of preclearance to ensure that it effectively prevents future discrimination without incurring unnecessary federalism costs.[footnote]See supra section I.B for a review of Section 3’s flexibility and how it alleviates the federalism concerns expressed by the Supreme Court in Shelby County . The complaints for all three of the cases introduced in section II.A asked for broad application of Section 3; they requested that the respective defendants be required to preclear all changes to voting mechanisms. See supra notes 92, 99, 120. While it is understandable that plaintiffs are loathe to preemptively limit the scope of their potential remedies, there is a strong argument that a court would be more willing to consider a narrowly tailored request, and one that directly responds to the alleged constitutional violation, to bail a jurisdiction into preclearance under Section 3.[/footnote] There are two primary aspects of Section 3’s flexibility: the types of voting changes covered by preclearance and the duration of the preclearance requirement. Under Section 3 (as opposed to Section 5), a court can tailor preclearance to cover only certain types of changes to voting laws or mechanisms. Both instances of adversely imposed Section 3 preclearance, Jeffers and Patino , limited preclearance to the type of law that gave rise to the constitutional violation.[footnote]Patino v. City of Pasadena, 230 F. Supp. 3d 667, 730 (S.D. Tex. 2017) (ordering Pasadena to preclear future changes to its city council election map); Jeffers , 740 F. Supp. at 601–02 (limiting a preclearance order to future changes to plurality-vote laws).[/footnote] This approach has the benefit of ensuring that the preclearance remedy is “sufficiently related to the problem that it targets.”[footnote]Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009).[/footnote] However, imposing preclearance only for the type of violation at hand may inhibit Section 3 preclearance from meeting its primary goal: to prevent future instances of discrimination in a given jurisdiction. Katzenbach found Section 5 preclearance justified because it prevented jurisdictions from responding to unfavorable court decisions by “switch[ing] to discriminatory devices not covered by the federal decrees.”[footnote]383 U.S. at 314.[/footnote] If courts require jurisdictions to preclear only changes similar to those that have already been declared unconstitutional, those jurisdictions may be able to avoid the brunt of preclearance simply by switching discriminatory strategies. Therefore, while a court should be careful to not impose overly broad preclearance under Section 3, it should also not default to imposing preclearance only for the type of discriminatory device in the case at hand.[footnote]The discussion in section III.C, infra, demonstrates how different scenarios merit different scopes of preclearance. The North Carolina legislature enacted sweeping changes to voting procedures, discriminating against people of color in several different ways. Pasadena discriminated against its Latino population only through redistricting. The former logically requires a more expansive preclearance remedy than the latter.[/footnote] Section 3 also gives a court wide discretion regarding the duration of preclearance requirements.[footnote]52 U.S.C. § 10302(c) (2012) (granting courts the power to retain jurisdiction to “prevent commencement of new devices to deny or abridge the right to vote”).[/footnote] In exercising this discretion, courts should be cautious of setting an excessively lengthy period during which a jurisdiction must preclear changes given Shelby County ’s insistence that preclearance be responsive to present-day needs.[footnote]Shelby County v. Holder, 133 S. Ct. 2612, 2619 (2013) (noting the VRA “imposes current burdens and must be justified by current needs” (internal quotation marks omitted) (quoting Nw. Austin , 557 U.S. at 203)).[/footnote] In the past, courts have ordered preclearance for between five and ten years.[footnote]See, e.g., Patino v. City of Pasadena, 230 F. Supp. 3d 667, 730 (S.D. Tex. 2017) (suggesting a five-year period for preclearance); Allen et al. v. City of Evergreen, No. 13-0107, 2014 WL 12607819, at *3 (S.D. Ala. Jan. 13, 2014) (imposing preclearance for six years); Sanchez v. Anaya, No. 82-0067M, at 2–3 (D.N.M. Dec. 17, 1984) (on file with the Columbia Law Review ) (imposing preclearance for ten years); Thurston Consent Decree, supra note 69, at 3 (imposing Section 3 preclearance for five years).[/footnote] Future courts should follow these examples, especially because the statute allows a court to revisit its preclearance order at a later time, either to extend the duration of preclearance or cut it short.[footnote]See 52 U.S.C. § 10302(c) (granting courts the power to retain jurisdiction for preclearance orders under Section 3).[/footnote] The above sections propose one option for a judicial standard for analyzing whether Section 3 preclearance is an appropriate remedy when a court finds that a jurisdiction enacted a new law or voting mechanism with discriminatory purpose. Sections III.C.1 and III.C.2, below, apply this standard to the facts of McCrory and Patino . Section III.C.3 briefly considers whether the court in Veasey v. Abbott should bail Texas into preclearance under Section 3. C. Applying the Standard: Revisiting McCrory and Patino 1. Should North Carolina Have Been Bailed in Under Section 3? — This section uses the three-pronged standard described above to imagine what might have been if—instead of summarily dismissing the plaintiffs’ request for Section 3 relief—the Fourth Circuit had taken the opportunity to thoroughly consider bailing North Carolina into preclearance. First, was North Carolina’s constitutional violation sufficiently severe to justify impinging on its sovereignty by bailing it into preclearance? Section III.B.1 argued for a presumption of severity in response to a constitutional violation, but that presumption is unnecessary here. The Fourth Circuit found that HB 589 “target[ed] African Americans with almost surgical precision”[footnote]N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016).[/footnote] and further stated that “[no] legislature in the Country [] has ever done so much, so fast, to restrict access to the franchise.”[footnote]Id. at 228.[/footnote] Relying on this analysis, it is safe to assume that the constitutional violation found by the Fourth Circuit in McCrory was sufficiently severe to outweigh the federalism costs of bailing North Carolina into preclearance. Second, do the facts of McCrory suggest that North Carolina is likely to enact more discriminatory laws in the future? The Fourth Circuit looked into North Carolina’s past and found a longstanding pattern of impermissible voter suppression, finding violations that were persistent, repeated, and recent, stretching from Jim Crow to the Shelby County decision.[footnote]Id. at 223–25. Because much of North Carolina was covered by the now-defunct coverage formula in Section 4(b) of the VRA, the Fourth Circuit gave significant weight to the fact that the DOJ “issued over fifty objection letters to proposed election law changes in North Carolina . . . because the State had failed to prove the proposed changes would have no discriminatory purpose or effect.” Id. at 224.[/footnote] Between 1980 and 2013, the DOJ objected under Section 5 of the VRA[footnote]See supra section I.A.2.[/footnote] to twenty-seven laws that either originated with or were officially approved by the North Carolina General Assembly.[footnote] McCrory , 831 F.3d at 224.[/footnote] The panel described these DOJ objection letters as “administrative finding[s] of discrimination.”[footnote]Id. (internal quotation marks omitted) (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 305 (1978)).[/footnote] Additionally, “private plaintiffs brought fifty-five successful cases under § 2 of the Voting Rights Act.”[footnote]Id. See supra section I.A.1 for an overview of Section 2 of the VRA.[/footnote] Finally, McCrory noted that a three-judge district court panel found—mere months before the McCrory decision—that the North Carolina General Assembly violated the Equal Protection Clause of the Fourteenth Amendment through impermissible racial gerrymandering of congressional districts.[footnote] McCrory , 831 F.3d at 225 (citing Harris v. McCrory, 159 F. Supp. 3d 600, 603–04 (M.D.N.C. 2016)).[/footnote] This extensive history of discrimination, while not dispositive, weighs strongly in favor of imposing preclearance.[footnote]Additionally, the fact that Shelby County now allows North Carolina to change voting laws and mechanisms without DOJ approval increases the likelihood of this type of violation recurring. See Wan, Monster Law, supra note 109 (reporting the chairman of the North Carolina Senate Rules Committee chose to move forward with the more comprehensive version of HB 589 only once the “‘legal headache’ of Section 5 [was] out of the way” (quoting Tom Apodaca, Chairman of the North Carolina Senate Rules Committee)).[/footnote] Additionally, the North Carolina legislature’s incentives for passing HB 589 have not changed in light of their defeat in McCrory . People of color still tend to vote for Democratic candidates,[footnote]See Alec Tyson & Shiva Maniam, Behind Trump’s Victory: Divisions by Race, Gender, Education, Pew Research Ctr. (Nov. 9, 2016), http://www.pewresearch.org/fact-tank/2016/ 11/09/behind-trumps-victory-divisions-by-race-gender-education/ [http://perma.cc/PAB2-BMY6] (reporting black voters chose Hillary Clinton over Donald Trump by an 88% to 8% margin).[/footnote] and the Republicans that passed HB 589 still want to win elections.[footnote]Cf. McCrory , 831 F.3d at 221–23. The Fourth Circuit considered how legitimate partisan purposes for changes to voting laws can be difficult to separate from illegitimate discriminatory purposes and concluded that “[u]sing race as a proxy for party may be an effective way to win an election[,] [b]ut intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose,” and is therefore impermissible. Id. at 222.[/footnote] The North Carolina Republican Party made its feelings on this issue clear when, in the days leading up to the 2016 election, the Party issued a statement celebrating low early voting turnout for people of color.[footnote]Press Release, N.C. Republican Party, NCGOP Sees Encouraging Early Voting, Obama/Clinton Coalition Tired, Fail to Resonate in North Carolina (Nov. 6, 2016), http://us2.campaign-archive2.com/?u=f3100bc5464cbba2f472ddf2c&id=e4b9a8fb19 [http://perma.cc/QM89-G5RB] (touting the fact that “African American Early Voting is down 8.5%” when compared to 2012).[/footnote] And although Pat McCrory—the Republican governor who signed HB 589 into law—lost the 2016 election to Roy Cooper,[footnote]David A. Graham, The North Carolina Governor’s Race Is Finally Over, Atlantic (Dec. 5, 2016), http://www.theatlantic.com/politics/archive/2016/12/north-carolina-governor-pat-mccrory-concedes-to-roy-cooper/509603/ [http://perma.cc/7HBZ-A99C].[/footnote] Republicans kept veto-proof majorities in both houses of the North Carolina legislature.[footnote]Paul Woolverton, Republicans Retain Veto-Proof Control of N.C. Legislature, Fayetteville Observer (Nov. 9, 2016), http://www.fayobserver.com/b91337dc-a63b-11e6-94b0-df0d1417c782.html [http://perma.cc/BGQ9-NBTH].[/footnote] Therefore, the election of a Democratic governor is not a “political development[], independent of [the current] litigation, [that] make[s] recurrence . . . less likely.”[footnote]Jeffers v. Clinton, 740 F. Supp. 585, 601 (E.D. Ark. 1990).[/footnote] Finally, there is evidence that the legislature is, in fact, writing a new law that may infringe upon the voting rights of people of color.[footnote]William Wan, North Carolina’s Battle over Voting Rights Intensifies, Wash. Post (May 29, 2017), http://www.washingtonpost.com/national/north-carolinas-battle-over-voting-rights-intensifies/2017/05/29/a977a26c-43fd-11e7-a196-a1bb629f64cb_story.html (on file with the Columbia Law Review ) (reporting the North Carolina Republican Party is in the process of developing a new voting law).[/footnote] North Carolina’s long history of voter suppression and the legislature’s strong incentives to try again after the Fourth Circuit’s decision tip the second factor to weigh in favor of bailing North Carolina into preclearance under Section 3 of the VRA.[footnote]Additionally, the nature of HB 589—how it was dramatically expanded after the Shelby County decision and passed with little deliberation or opportunity for public input—suggests that the North Carolina legislature was not appreciably concerned with the constitutionality of its actions. See supra section II.B.1.[/footnote] The last factor considers whether future violations may be easily resolved through individual lawsuits absent preclearance.[footnote]Arguably, this is the only factor that the Fourth Circuit touched on in its opinion, holding that Section 3 preclearance was “not necessary . . . in light of our injunction.” N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 241 (4th Cir. 2016).[/footnote] In this case, the Fourth Circuit’s injunction, granted on July 29, 2016,[footnote]Id.[/footnote] came nearly three years after the original complaint was filed[footnote]Complaint at 32, N.C. State Conference of NAACP v. McCrory, 182 F. Supp. 3d 320 (M.D.N.C. 2016) (No. 1:13-CV-658), 2013 WL 4053231.[/footnote] and after multiple stops at the district, appellate, and Supreme Court levels. It is likely that a lawsuit challenging a future attempt to suppress the voting rights of people of color would be similarly drawn out because the legislature has every reason to fight tooth and nail to prevent its law from being struck down.[footnote]See supra notes 210–212 and accompanying text for a discussion of the General Assembly’s incentives for passing discriminatory voting laws. These incentives extend naturally to preventing said laws from being struck down.[/footnote] This is much different from the hypothetical discussed above,[footnote]See supra note 191 and accompanying text.[/footnote] where the state may disavow discriminatory application of a nondiscriminatory law by an individual state employee and therefore avoid multiyear litigation. Thus, this factor also weighs in favor of imposing Section 3 preclearance on North Carolina. All three of the factors discussed in section III.B support bailing North Carolina into preclearance under Section 3 of the VRA. The next step, as discussed in section III.B.4, is to tailor the imposition of preclearance to ensure that it is “sufficiently related to the problem that it targets.”[footnote]Shelby County v. Holder, 133 S. Ct. 2612, 2622 (2013) (internal quotation marks omitted) (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)).[/footnote] First, HB 589 was a state law, and there was no reason to impose preclearance on localities within the state, so preclearance should have been imposed on state legislative actions only. Second, HB 589 warranted broad Section 3 preclearance, covering all changes to voting laws enacted by the General Assembly. HB 589 was a multifaceted bill that adopted several different measures to target people of color in North Carolina “with almost surgical precision.”[footnote] McCrory , 831 F.3d at 214.[/footnote] This is different from both Jeffers , in which Arkansas repeatedly passed one type of law in response to people of color being elected to various offices,[footnote]Jeffers v. Clinton, 740 F. Supp. 585, 586 (E.D. Ark. 1990).[/footnote] and Patino , in which a redistricting plan was the sole issue under consideration.[footnote]Patino v. City of Pasadena, 230 F. Supp. 3d 667, 673 (S.D. Tex. 2017).[/footnote] An expansive attempt to discriminate merits a proportionally expansive preclearance remedy. Finally, if the Fourth Circuit bailed North Carolina into preclearance, it should have been limited to five or ten years. This would be in line with previous cases and satisfy the Supreme Court’s requirement that preclearance be responsive to the current situation and not based on long-ago discriminatory actions.[footnote] It is important to remember that the court imposing preclearance retains the authority to shorten or extend the duration of preclearance, as necessary. See supra section I.B. [/footnote] In sum, not only did the Fourth Circuit miss an excellent opportunity to bring clarity to a newly important section of the VRA, but it also likely should have bailed North Carolina into preclearance. While the Fourth Circuit’s injunction prevented the worst parts of HB 589 from being enacted, the North Carolina legislature is free to pass a new law that meets the same end but that lacks the explicit discriminatory purpose evident in its passage of HB 589. 2. Was the Patino Court Justified in Requiring Pasadena to Preclear Future Changes to Redistricting? — This section applies the three-pronged standard described in section III.B to Patino to determine if the district court was justified in requiring Pasadena to preclear any future changes to the city’s electoral map. First, there is a strong argument that the Supreme Court’s concern about maintaining “equal sovereignty” among the states does not apply to a case involving a city within the state of Texas, as opposed to the state itself.[footnote]Recent Supreme Court case law references a long-standing “tradition that all the States enjoy ‘equal sovereignty.’” Nw. Austin , 557 U.S. at 203 (emphasis added) (quoting United States v. Louisiana, 363 U.S. 1, 16 (1959)). Northwest Austin did hold that a small utility district was eligible to bail out of the Section 5 preclearance, id. at 197, but this decision was based on a statutory interpretation of “political subdivision,” id. at 211, and not based on the idea that political subdivisions also enjoy equal sovereignty. See Shelby County , 133 S. Ct. at 2624 (“[T]he fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States .” (emphasis added)).[/footnote] However, even assuming that the Supreme Court would view a preclearance requirement for a city or other local entity with the same opprobrium as “disparate treatment of [s]tates,”[footnote] Shelby County , 133 S. Ct. at 2624.[/footnote] intentional dilution of people of color’s voting power is sufficiently severe to justify preclearance.[footnote]See Thornburg v. Gingles, 478 U.S. 30, 47 (1986) (finding vote dilution violates the VRA because it can “operate to minimize or cancel out the voting strength of racial minorities in the voting population” (internal quotation marks and brackets omitted) (quoting Burns v. Richardson, 384 U.S. 73, 88 (1966))).[/footnote] The second factor considers whether future constitutional violations are likely by looking for recent and continued evidence of past discrimination within the jurisdiction and whether circumstances have changed such that future discrimination is less likely. The Patino court reviewed historical race-based discrimination in Pasadena, noting that, among other things, “Pasadena was the Texas headquarters of the Ku Klux Klan,” the federal government successfully sued the Pasadena School District for race discrimination, and Latino citizens have had ongoing complaints of racial bias in policing.[footnote] Patino , 230 F. Supp. 3d at 684.[/footnote] The court found that “Texas in general and Pasadena in particular have a long history of discriminating against Latinos” and that “Pasadena’s history of discrimination in voting and segregation in housing, education, and employment have left a legacy of fear, alienation and a lower participation in voting and other practices of democracy.”[footnote]Id. at 714 (quoting the bench trial transcript).[/footnote] The court also noted that the mayor and city officials used “coded” language to disguise racial animus in the campaign to have the redistricting plan passed.[footnote]Id. at 704.[/footnote] Finally, because the current city council was elected under the redistricting plan that the court declared unconstitutional,[footnote]Id. at 729–30.[/footnote] there has not been a change of circumstances that would make future discrimination less likely. Because of past and present discrimination against Latino citizens in Pasadena and the lack of circumstances making discrimination less likely, the second factor weighs in favor of imposing Section 3 preclearance. The final factor considers whether future violations could be easily remedied under Section 2 absent preclearance. The original complaint in this case was filed on November 12, 2014.[footnote]Complaint at 12, Patino , 230 F. Supp. 3d 667 (No. 4:14-03241) (on file with the Columbia Law Review ).[/footnote] After two years of discovery and motion practice, there was “a seven-day bench trial, at which 16 witnesses testified and the court admitted 468 exhibits into evidence.”[footnote] Patino , 230 F. Supp. 3d at 674.[/footnote] Moreover, redistricting litigation is often drawn out and expensive.[footnote]See J. Gerald Hebert, Redistricting in the Post-2000 Era, 8 Geo. Mason L. Rev. 431, 433 (2000) (noting a “lack of clarity, coupled with a lack of consensus in the lower courts about how to interpret Supreme Court decisions and the Voting Rights Act, ensures that the post-2000 redistricting battles will be fought out in the courts in unprecedented fashion”).[/footnote] Under these circumstances, denying preclearance would force Latino citizens of Pasadena to repeatedly undertake complex and costly litigation to protect their voting rights. Additionally, during the challenge of the redistricting law, Pasadena held a city council election in which Latino voting power was diluted.[footnote] Patino , 230 F. Supp. 3d at 682.[/footnote] This “wrong to [Pasadena’s] citizens is too serious” to not impose preclearance.[footnote]South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966) (quoting H.R. Rep. No. 439, 89th Cong., at 11 (1965)).[/footnote] Therefore, the third factor also weighs in favor of granting preclearance. The district court appropriately tailored the Section 3 relief it granted in Patino . First, it limited preclearance to future changes to Pasadena’s electoral map.[footnote] Patino , 230 F. Supp. 3d at 729–30.[/footnote] This is both broad enough to cover different types of redistricting that may dilute Latino voting strength and narrow enough to avoid unnecessarily infringing on Pasadena’s political independence.[footnote]This contrasts with section III.C.1, supra, which argued for requiring broad preclearance for future laws affecting voting rights in North Carolina. This difference highlights Section 3’s flexibility. North Carolina passed a massive voting bill that discriminated against people of color in numerous ways, see supra section II.B, while Pasadena’s discrimination was limited to redistricting, see supra section II.C. The difference in the magnitude and scope of the discriminatory actions in each case necessarily leads to different levels of Section 3 preclearance.[/footnote] Second, it suggested that preclearance lasts for only five years, “likely enough time for demographic trends to overcome concerns about dilution from redistricting.”[footnote] Patino , 230 F. Supp. 3d at 730.[/footnote] In sum, the Patino court was justified in requiring Pasadena to preclear future changes to its electoral map, and it appropriately tailored the preclearance order. The court could have more thoroughly explained its rationale for granting Section 3 relief against Pasadena, but the relief itself was appropriate. 3. Looking Forward: Should Texas Be Bailed into Preclearance Under Section 3? — In the coming months, U.S. District Judge Nelva Gonzales Ramos will decide whether Section 3 preclearance is an appropriate remedy for the discriminatory laws passed by the Texas legislature.[footnote]See supra notes 96–106 and accompanying text.[/footnote] This section briefly considers whether Texas should be bailed into Section 3 preclearance. First, the violation found by the district court is sufficiently severe to merit infringing on Texas’s sovereignty. The district court found that SB 14 could potentially affect over 600,000 eligible voters in Texas, with people of color comprising a disproportionate segment of that number.[footnote]Veasey v. Perry, 71 F. Supp. 3d 627, 659 (S.D. Tex. 2014) aff’d in part, rev’d in part, vacated in part en banc sub nom. Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016).[/footnote] Second, the litigation surrounding SB 14 demonstrates that the Texas legislature is likely to commit future constitutional violations. The district court noted in its original opinion finding discriminatory purpose that SB 14 was Texas’s fourth attempt to pass voter ID legislation.[footnote]Id. at 645.[/footnote] Additionally, when Texas responded to the court’s second finding of discriminatory purpose by passing a new version of the law, the court found that the new law did not cure the discriminatory purpose or effect of SB 14.[footnote]See supra note 104 and accompanying text.[/footnote] The fact that the DOJ issued 207 Section 5 objection letters prior to Shelby County provides further evidence of the state’s history of discrimination.[footnote]See supra note 66.[/footnote] Finally, like HB 589 in North Carolina, any lawsuit challenging statewide discriminatory legislation is likely to necessitate burdensome and complex litigation.[footnote]See supra notes 210–212, 214 and accompanying text (explaining a legislature’s incentives for vigorously defending its own legislation).[/footnote] All three factors favor bailing Texas into preclearance under Section 3. Because the challenged provisions of Texas SB 14 focused solely on voter IDs,[footnote]See Perry , 71 F. Supp. 3d. at 641.[/footnote] Texas should only be required to preclear future voter ID laws. Comparing the scope of preclearance this Note recommends for North Carolina and Texas provides a final, pellucid example of Section 3’s adaptability. North Carolina passed an expansive bill that instituted several discriminatory changes to voting practices,[footnote]See supra section II.B (describing the broad, multifaceted discriminatory nature of HB 589).[/footnote] and, despite the effects on North Carolina’s sovereignty, broad preclearance coverage is necessary to match the legislature’s demonstrated innovation for voter suppression. Texas, on the other hand, has repeatedly attempted to pass different versions of one type of discriminatory device: its voter ID law. Limited preclearance covering only voter ID laws will preserve most of Texas’s sovereignty while also ensuring that if the Texas legislature passes a sixth voter ID law, it will not be implemented if it has a discriminatory effect. Section 3 allows courts to protect state sovereignty to the greatest extent possible while also preventing future discriminatory voting laws. This is precisely what Chief Justice John Roberts had in mind when he asked that the “current burdens” of preclearance be “justified by current needs.”[footnote]Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009).[/footnote] Conclusion Dissenting in Shelby County , Justice Ginsburg stated the obvious: “[L]itigation under § 2 of the VRA [is] an inadequate substitute for preclearance” when it comes to protecting the right to vote,[footnote]Shelby County v. Holder, 133 S. Ct. 2612, 2640 (2013) (Ginsburg, J., dissenting).[/footnote] a right “preservative of all rights.”[footnote] Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).[/footnote] With Section 5 preclearance eviscerated by Shelby County , strategic use of Section 3 preclearance is the last remaining bulwark against jurisdictions that habitually pass discriminatory voting laws. A judicial framework based on the Supreme Court’s reasoning in South Carolina v. Katzenbach is the most logical way to approach future requests for preclearance under Section 3. Neither the Fourth Circuit in McCrory nor the district court in Patino engaged in a meaningful analysis of the merits of imposing preclearance. Instead, the decisions rejected and granted Section 3 preclearance in a few short sentences. In order to preserve the last functional conduit for requiring jurisdictions that intentionally suppress people of color’s voting power, future courts—including the court presently considering whether to bail Texas into preclearance under Section 3—should fully consider the appropriateness of Section 3 preclearance, whether using the framework suggested in section III.B or another similar framework. If future courts do not seriously consider making use of the flexible and narrowly tailored remedy offered by Section 3 preclearance, it will not be long before “rarely used” becomes “never to be used again.”