<x-flowed>I'll go ahead and jump in with some comments about Rick's bail-out proposal.
First, I'll offer my general agreement that it is useful to think about how
the current Section 5 proposal may be ramped down in such a manner as to
increase the likelihood that the Section 5 reauthorization will be upheld by
the Supremes while not undermining the ability of Section 5 to do the job it
is designed to do. One approach, as Rick indicates, may be to re-jigger the
bail-out provision (others could involve shortening the length of the
extension period or eliminating certain voting practices from coverage that
almost never lead to an objection).
That said, I think that the details of Rick's proposal miss the mark in
several respects. At least one difficulty with proposed Section 9(a) is
that it would seem to place a huge burden on DOJ to conduct hundreds, if not
thousands, of investigations, many of which would require a significant
amount of effort in order to determine if all the (a)(1) requirements have
been met. Also, to the extent it is premised on the idea that the paucity
of bailout suits is due to covered jurisdictions not realizing that they
potentially could bail out, I tend to doubt that that is what is going on.
Rather, it seems more likely that they consider it marginally less costly to
simply file for and receive preclearance than get involved in trying to bail
out (this might change if they now see that they face another several
decades of coverage).
I also think that the proposed amendment to subsection E is problematic. I
take it that the amendment is aimed at dealing with the objections that
allegedly were interposed based on a policy of maximization or to the
objections based on the pre-Bossier II understanding of discriminatory
purpose. Initially, I note that I don't agree that any such max policy
existed, and, with respect to Bossier II, it is looking likely that Congress
will say that the Supremes were the ones that got it wrong. In addition,
any effort to revisit the basis for old objections could be very messy from
the standpoint of litigation and divisive with regard to community relations
in the subject community. But, most fundamentally, it is important to
remember that, under Section 4, the only relevant objections are those
issued "during the ten years preceding the filing of the action, and during
the pendency of such action." Accordingly, the pre-Shaw, pre-Miller
objections are no longer of any consequence with regard to the ability to
bail out.
Mark
----- Original Message -----
From: "Rick Hasen"
<Rick.Hasen@lls.edu>
To: "election-law"
<election-law@majordomo.lls.edu>
Sent: Thursday, May 18, 2006 12:41 PM
Subject: VRA Bailout Amendment
http://electionlawblog.org/archives/005655.html
Hasen: Drafting a Proactive Bailout Measure for VRA Reauthorization
I have explained why I think a "proactive bailout" measure could help
sustain the constitutionality of a renewed section 5. I have taken a stab
at trying to actually draft language to put this into effect. This is a
work in progress; comments very welcome. Here is the proposal:
Amend section 1973(a)(1)(9) as follows:
(9) Nothing in this section shall prohibit t
(a) 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.
(b) The Attorney General from shall consenting to an entry of judgment if
based upon a showing of objective and compelling evidence by the
plaintiff, and upon investigation, he is satisfied that the State or
political subdivision has complied with the requirements of subsection
(a)(1) of this section. Any aggrieved party may as of right intervene at
any stage in such action. If the Attorney General consents and no
aggrieved party intervenes, the court shall issue a declaratory judgment
that the State or political subdivision has complied with the requirements
of section (a)(1) of this section.
I also think Congress should tweak the bailout language slightly to deal
with the fact that the DOJ objected to certain actions by states that the
Supreme Court later said should not have been objected to. So I'd include
this amendment as well:
Amend section 1973(a)(1)(E) as follows:
(E) the Attorney General has not interposed any objection (that has not
been overturned by a final judgment of a court or issued under an
interpretation of this Act contrary to Supreme Court precedent) and no
declaratory judgment has been denied under section 1973c of this title,
with respect to any submission by or on behalf of the plaintiff or any
governmental unit within its territory under section 1973c of this title,
and no such submissions or declaratory judgment actions are pending; and
As I said, this is rough, and I welcome comments to this approach.
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
</x-flowed>