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

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

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Given that “[s]trong measures appropriate to address one harm may be an

unwarranted response to another, lesser one,”181

Boerne and its progeny

examine the legislative record of constitutional violations to determine the

appropriateness of the remedial or prophylactic response. The Court has

cautioned that Congress needs to document “a pattern of unconstitutional

discrimination by the States.”182

Thus, Congress cannot rely on examples of

constitutional state conduct183

or “anecdotal evidence.”184

Because the pocket trigger is a permanent provision, the relevant legislative

record is that of the Voting Rights Act of 1965, not that of the

reauthorizations.185

This is a virtue for the pocket trigger, given the

“undisputed record of racial discrimination confronting Congress in the voting

rights cases.”186

Indeed, the Court upheld the more expansive section 5 using

180. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000) (citation omitted). But see Post & Siegel,

supra note 53, at 513 (arguing that the Boerne line of cases misallocates constitutional
interpretation amongst the branches).

181. City of Boerne v. Flores, 521 U.S. 507, 530 (1997) (citation omitted).

182. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 372 (2001).

183. See Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 645-46

(1999).

184. Boerne, 521 U.S. at 531.

185. Because of the addition of the language minority provisions to the VRA, the pocket trigger

was amended in 1975 to add Fourteenth Amendment violations to its ambit. Pub. L. No. 94-

73, § 205, 89 Stat. 400 (1975). In the Boerne line of cases, the Supreme Court has never

examined a statute that has been amended in such a fashion. Thus, whether to examine the

legislative record of the 1965 or 1975 version may be up for debate at the Court. In any event,

the pocket trigger could cover language minorities solely under the Fifteenth Amendment.
See NAMUDNO, 573 F. Supp. 2d 221, 243-45 (D.D.C. 2008), rev’d on statutory grounds, 129 S.
Ct. 2504 (2009). Only vote dilution suits, then, would not be covered by the original pocket

trigger. Cf. City of Mobile v. Bolden, 446 U.S. 55, 65 (1980) (plurality opinion) (holding

that the Fifteenth Amendment only encompasses ballot access suits).

186. Florida Prepaid, 527 U.S. at 640 (citation omitted); see also Garrett, 531 U.S. at 373 (praising

the VRA’s legislative record); Boerne, 521 U.S. at 530-33 (same).

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the yale law journal

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the 1965 legislative record.187

The second step in the Boerne inquiry, therefore,

should not pose a problem for the pocket trigger.188

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