Ed,
I think your argument proves my point. A proactive bailout proposal
shifts the incentive to the DOJ (or rather, mandates the DOJ) to work
in gathering this information. I want the DOJ to conduct those audits,
with the cooperation of the local jurisdiction. If a local
jurisdiction does not want to cooperate with a fact intensive
investigation that DOJ conducts, then the jurisdiction will remain
covered.
Now perhaps the argument is that DOJ doesn't have the resources to do
this. If that's right, then give DOJ more resources in the VRA bill.
And if the argument is that it would take longer than a year to go
through all the jurisdictions, then the amendment could be reworked to
require DOJ to begin with those jurisdictions that appear most likely
to be able to bailout, and to complete a review within three years of
the Act of all jurisdictions.
Rick
Edward Still wrote:
Rick,
The problem with "proactive" bailout provisions such as
Westmoreland proposes is the lack of understanding about who has the
most
opportunity, ability, and incentive to gather evidence proving the
matters called for by the bailout provision.
Take a look at the bailout requirement found in Section 4(a) of the
VRA. Four requirements (A-C and E) are matters that can be found in
the AG's files. Paragraph D requires the jurisdiction to show that
it has not made any change that has not been submitted. How is the
AG going to know that unless the Voting Section conducts an audit of
every law, every regulation, every administrative bulletin implemented
since 1964, 1968, or 1972? Paragraph F requires proof of the
jurisdiction's affirmative steps beyond the prohibitions of Section 5
"changes" to have made things better for minorities.
Again, how will the DOJ know this without doing a fact-intensive
investigation "on the ground"?
I have been involved with some preclearance requests on behalf of
jurisdictions. I know it is tough just trying to get some small
places to find all the election procedures they changed so we can tell
the DOJ that previous practices have all been precleared.
Ed Still
At 11:26 AM 6/20/2006, you wrote:
Hasen: Proactive Bailout
Amendment to Be Offered in House Rules Committee
I have been
advocating
a proactive bailout amendment for VRA renewal that I think can increase
the chances that a renewed VRA passes constitutional muster
without
weakening the important protections of section 5. Rep. Lynn
Westmoreland
will be offering
this
amendment on proactive bailout today to the House Rules Committee.
That committee will determine if the amendment gets offered on the
floor
of the House during the vote on VRA renewal on Thursday. His office
also
has issued
this
explanation of the proposed amendment.
Aside from the general statement in
Laughlin
McDonald's Findlaw piece opposing a "preemptive
weakening" of the VRA renewal amendment, I have not seen anything
written from anyone on the merits as to why proactive bailout is a bad
idea. I think I prefer the language I've crafted to the Westmoreland
amendment, but I'm asking the more general question. What are the
arguments against proactive bailout, provided that the standards for
which jurisdictions may bail out don't change? Just to answer what I
consider to be an obvious objection: what prevents a political DOJ from
overreaching and consenting to bailout in too many jurisdictions? The
answer is that if DOJ does so, at least under my proposal, intervenors
can object and the three-judge panel considering the bailout request
must
conduct a hearing on whether bailout is warranted.
Edward Still
attorney & mediator
Suite 201
2112 11th Avenue South
Birmingham AL 35205
phone 205-320-2882
fax toll free 1-877-264-5513
still@votelaw.com
http://www.EdwardStill.com
http://www.votelaw.com/blog
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org