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A PROACTIVE BAILOUT FOR THE VOTING RIGHTS ACT.
Our Voting Rights series continued: Michael McDonald, a professor of politics at George Mason University, proposes “proactive bailout,” where the Department of Justice actively reviews which jurisdictions merit continued federal scrutiny per Section 5 of the Voting Rights Act.
Which jurisdictions should be required under Section 5 to receive federal approval before they can change their election procedures? The Supreme Court sidestepped this thorny issue in its NAMUDNO decision. However, a problem remains. Section 5 must be "narrowly tailored" to target suspect jurisdictions, but it must not be overly broad to capture those without discriminatory practices.
There are two components to the "trigger formula" that define which jurisdictions are covered by Section 5. The first provision requires that a jurisdiction has previously employed a discriminatory voting test, such as a literacy test. In 1975, this provision was amended to include jurisdictions with substantial non-English speaking populations. The second considers whether a jurisdiction’s voter turnout was low in the 1964, 1968, and 1972 presidential elections.
The formula is not perfect. It is an easily applied way of identifying places that were clearly discriminating. However, it failed to include some jurisdictions that perhaps should be monitored, and it included some that perhaps should not. In the former case, courts can place jurisdictions under coverage. In the latter, courts can exempt jurisdictions through a "bailout," a process whereby jurisdictions petition federal courts for escape from Section 5 coverage.
More after the jump.
-- Michael P. McDonald
Many jurisdictions routinely submit election administration changes without objection from the federal government, which is a condition for bailout. However, only 17 Virginia local jurisdictions have successfully petitioned for bailout since 1983. Bailout is an onerous process, deterring many jurisdictions from attempting it. A jurisdiction must further document its proactive steps toward erasing discrimination. It is ultimately less costly for jurisdictions to just continue federal oversight.
The federal government should conduct a ‘proactive bailout’ review for all currently covered jurisdictions, ending this perverse incentive structure that traps them unnecessarily. There would be upfront costs, but if fewer jurisdictions were covered resources could be better targeted on those that deserve monitoring. Furthermore, such action would address the Justices’ concern that Section 5 “differentiates between the States in ways that may no longer be justified.” In this way, the constitutionality of Section 5 in future litigation would be preserved.
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