VRA Bailout Amendment

Subject: VRA Bailout Amendment

From: Rick Hasen

Date: 5/18/2006, 9:41 AM

To: election-law

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:

(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 consent~~ing~~ 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:

(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