There's another explanation for the lack of jurisdictions attempting to bail
out, in addition to the factors Rick Pildes listed, that has been raised in
the hearings and by several commentators.  Some jurisdictions actually
prefer to be covered, for a variety of reasons (including that they don't
find it to be particularly burdensome, it gives them political cover for
voting changes by getting DOJ approval, etc.).  For an example of this, see
this report regarding the Board of Supervisors of Monterey County,
California (a covered jurisdiction) urging that Sec. 5 be renewed and
strengthened.

David J. Becker
Election Consultant and Voting Rights Attorney
(202) 550-3470
(202) 521-4040 fax
david.j.becker@electionconsulting.com
www.electionconsulting.com
________________________________________
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Rick Pildes
Sent: Thursday, May 18, 2006 4:54 PM
To: Rick.Hasen@lls.edu; election-law@majordomo.lls.edu
Subject: VRA Bailout Amendment

On bailout:Ê The original vision of Section 5 and the vision further
emphasized by Congress in 1982, when it amendedÊSectionÊ5 in an effort to
facilitate appropriate bailouts, was that the the unique regime of Section 5
would unwind itself over time.Ê Jurisdictions would bailout where
appropriate;ÊSection 5 would have a more and more targeted reach; the scope
of the Act would remain tied to where problems predominated.Ê As it turns
out, however, bailout has been close to non-existent, for practical
purposes, throughout the history of the Act, including since 1982.Ê With
Jerry Hebert's expert assistance, a handful of counties in Virginia have
managed to bailout since 1982.Ê But sensible policymakers should take no
great solace in this.Ê These counties all had de minimis black populations,
perhaps around 5% on average if I recall.ÊÊWhat they reveal about the
bailout process for jurisdictions that actually have significantly-sized
minority populationsÊremains unknown.Ê 
Ê
I see three central potential causes for the failure of bailout to play the
role envisioned for it, though only two have been mentioned thus far:Ê (1)
ignorance on the part of appropriate jurisdictions that bailout exists and
they are eligible for it; (2) excessively high legal standards that make
bailout impractical; (3) the charged nature of a jurisdiction seeking to
"get out of the VRA," particularly for risk averse elected officials.Ê I do
not know the relative contribution of these causes, or other potential
ones.Ê Indeed, an extremely productive role for Congress would be to examine
this question, with an eye toward determining if the bailout process ought
to be revised.Ê However, I do know from my experience that officials in
covered jurisdictions will frequently offer (3) as their first response.Ê
Others I have talked with confirm this.
Ê
This is relevant to assessing Rick Hasen's proposal regarding the role of
DOJ (or perhaps a commission of some sort) in providing data relevent to
potential bailouts, and perhaps taking other steps to initiate the process
(subject to judicial review perhaps).Ê The central benefit of some proposal
of this form is that it seeks to address (3) by taking some of the heat off
of jurisdictions for taking the first step in pursuing a bailout process.Ê
For purposes of sensible policy, as well as the constitutionality of Section
5, there ought to be broadly shared interests in making it easier for
jurisdictions to bailout where appropriate.Ê If, as I suspect, (3)
contributes significantly to the invisibility of bailout, then any
improvement of bailout must come to terms with this issue.Ê Mark's response,
which worries about the burdens on DOJ, does not take (3) into acount at all
in reacting to the proposal.Ê 
Ê
The former DOJ lawyers might be able to provide useful perspective on what
informational role and burdens it would be reasonable to put on DOJ to
facilitate appropriate bailout, given (3).Ê My initial response to Rick's
proposal is that the process should be more of an administrative one,
subject to judicial review.Ê Rick preserves the original bailout structure,
in which the AG and jurisdiction have to go to court.Ê That seems a remnant
of the original Section 5 that might make less sense today, as long as
courts are there as a backstop.Ê Of the practical things that can be done to
bolster the constitutionality of a renewed Section 5, I think (a) making
bailout more practical and effective and (b) shortening the term of renewal
are the most feasible.Ê And I think a well-thought through proposal on (a)
is likely to generate the most widespread consensus of the two options.
Ê
Ê
Ê
Ê
Richard Pildes
Visiting Professor, Harvard Law School, Feb-June 2006
Cambridge, MA 02138
phone:Ê 617-496-7353
fax:Ê 617-496-4863
Ê
Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law