Search

NOTE CONTENTS INTRODUCTION 1464 1. ROOTS OF THE CURRENT CRISIS 1469 A. The Coming Wave of Vote Denial 1469 B. The Purcell Problem 1475 C. Section 3: The Voting Rights [...], Since the 2020 election cycle, two significant developments have affected voting-rights litigation. On one hand, states have ramped up their efforts to restrict access to the polls, passing a host of laws that threaten to depress turnout and deter voters, particularly members of racial, ethnic, and language minorities. At the same time, the Supreme Court's increasingly broad use of the Purcell Principle to stay lower-court injunctions has made it harder for advocates to put a stop to vote denial before it can sway elections. It also creates harmful incentives for states to delay and obstruct litigation in hopes that if courts ultimately rule against them, it will be too late for advocates to secure a remedy. Given these developments, Section 3 of the Voting Rights Act may be one of the last tools available to defend the franchise in an election year. This Note makes two observations about Section 3 that may help reinvigorate its use. First, Section 3 authorizes courts to impose preclearance based on any constitutional violation, not just those that allege intentional racial discrimination. Second, because Section 3 preclearance may be imposed following any "equitable relief," not just injunctions, it may be based on a declaratory judgment alone. This allows lower courts to bail offending jurisdictions into preclearance even when Purcell means it is too close to an election to issue an injunction. A credible threat of Section 3 preclearance would deter states from manipulating the Purcell window to restrict voting rights and prevent states that do unconstitutionally burden the right to vote from becoming repeat offenders down the road.