Posted June 20, 2006 by J. Gerald Hebert

Bailouts and the Voting Rights Act: Observations About Rick Hasen’s Proposals

The reauthorization of the Voting Rights Act has been a hot topic in legal and political circles.  An interesting proposal has been advanced by Rick Hasen to create a Proactive Bailout Measure for VRA Reauthorization.  While the idea makes some sense, implementing Rick’s proposal would require resources not existing at the DOJ and, for this reason, I doubt the practicality or feasibility of the proposal.  I offer some alternative approaches below.   

Rick is of the view that a "proactive bailout" measure could help sustain the constitutionality of a renewed section 5 of the Voting Rights Act.  Section 5 of the VRA requires certain states and political subdivisions to submit voting changes for federal approval, known as “preclearance,” either from a three-judge court in DC or from the US DOJ.  The VRA has included a provision since 1982 that allows states and political subdivisions to seek a bailout from this special preclearance requirement.  Like many others, I believe the existing, viable bailout option helps sustain the constitutionality of the Act’s renewal. 

Rick has suggested some draft language (now apparently included in an amendment offered by Congressman Westmoreland) that Rick believes his drafted language would accomplish this.  For example, Rick proposes to amend section 1973(a)(1)(9) as follows: “The Attorney General shall regularly investigate and prepare a list based on such investigations of States and political subdivisions that, in the Attorney General's view, have complied with the requirements of subsection (a)(1) of this section.  Beginning in 2007, the Attorney General shall cause to be published in the Federal Register by December 1 of each year a list of complying jurisdictions. The Attorney General shall promptly notify complying jurisdictions of their status and their ability to apply to the district court for bailout from the preclearance provisions of this Act.”

I assume that under Rick’s proposal, the current bailout criteria would remain unchanged (and that is the case under Congressman Westmoreland’s amendment as well).  To refresh our memories, those bailout requirements are as follows:

1.  During the ten years preceding the filing of the action:

A)        no test or device has been used either for the purpose or with the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group, within the State or political subdivision seeking a declaratory judgment;

B)        no final judgment has been entered by any court determining that the political subdivision has denied or abridged the right to vote on account of race, color, or membership in a language minority group;

C)        no Federal examiners have been assigned to the political subdivision;

D)        all governmental units within the political subdivision have complied with the preclearance provisions of Section 5 of the Voting Rights Act, 42 U.S.C. 1973(c); and

E)         the Attorney General has not interposed any objection to any proposed voting change within the political subdivision and no declaratory judgment has been denied with regard to such a change by this Court under Section 5.

2.  Section 4 of the VRA also requires States and political subdivisions seeking an exemption from the Act's special provisions to show at the time they seek a bailout that:

A)        There are no voting procedures or methods of election within the state or political subdivision which inhibit or dilute equal access to the electoral process has been eliminated;

B)        Constructive efforts have been made by the political subdivision to eliminate any intimidation or harassment of persons exercising rights under the Voting Rights Act; and

C)        Expanded opportunities for convenient registration and voting exist within the State or political subdivision.

I doubt seriously that the Attorney General has the staff or resources to undertake the investigations contemplated by Rick’s proposal.  Like the proposals to extend Section 5 nationwide, they would tax the DOJ resources beyond the breaking point.  I was in the Voting Section at the time of the 1982 amendments, and DOJ sought and obtained added resources to deal with an expected onslaught of bailout cases.  They never materialized and those resources were then allocated elsewhere.  It would take a dramatic increase of staff and resources to implement the type of comprehensive review of bailout eligibility contemplated in Rick Hasen’s proposal.

It has been my experience that to determine eligibility for bailout takes a rather comprehensive assessment of all aspects of the voting/election process in a State or political subdivision.  This would include, for example, a description of the opportunities afforded minority voters to become registered voters, the extent to which minorities participate in the political process (including their success as candidates, whether they have worked in the registration office, the extent to which they have served as poll officials in the jurisdictions, etc.).  Moreover, to assess bailout eligibility, it is usually necessary to review voter turnout numbers to determine the extent to which the electorate is participating in national, state, and local elections. 

Views of the minority community are also routinely sought in bailout cases.  Thus, under Rick’s proposed language, the Attorney General would need to contact minority leaders in every jurisdiction to obtain their views on bailout.  In addition, in order to assess whether a jurisdiction has faithfully complied with Section 5, usually a review of the records of the jurisdiction is undertaken to study whether any voting changes have been implemented by the jurisdiction without the requisite preclearance.  It is not clear to me how DOJ, with limited resources, would be able to undertake this type of review in all of the jurisdictions covered by the Act, since that information is uniquely in the possession of the covered jurisdictions.

Perhaps a more feasible approach and one that might end up bringing about more bailouts would be this:  DOJ ought to be encouraged by Congress to write a letter to each covered jurisdiction that informs them of the bailout option, lists the bailout criteria, and encourages those jurisdictions which might be eligible to seek a bailout promptly.  A similar letter writing campaign was instituted by the Attorney General with regard to advising states of their bilingual election obligations under Section 203 of the Voting Rights Act.  The Voting Section could then give each jurisdiction a checklist of information that the jurisdiction could gather and forward to DOJ for review of bailout eligibility.  I believe that is a more viable option than requiring the AG to investigate bailout eligibility for each and every covered jurisdiction. 

I suppose another viable approach might be to amend the VRA to allow any jurisdiction with a de minimis minority population to be granted a declaratory judgment of a bailout unless DOJ (or an intervenor) could establish that the jurisdiction does not meet all of the current bailout criteria.  That would likely exclude a substantial number of jurisdictions from continued Section 5 coverage (and coverage under other special provisions) and create a presumption of bailout that could be rebutted only by proof that the political process is not equally open to all voters.  Such a provision also is consistent with Rick’s laudable goal of crafting a bailout measure that could help sustain the constitutionality of a renewed section 5 of the Voting Rights Act.