We write in response to Mr. J. Christian Adams’s article, “Eric Holder Cons the Courts to Save Voting Rights Act,” to which you linked earlier in the day. That article is misinformed on the facts and the law. Merced County was qualified to bailout, and worked extremely hard to get there. There was no “collusion” of any sort. At the time it sought Attorney General Holder’s consent, the County had been victorious in the Lopez litigation, was in full compliance with its preclearance obligations, and satisfied the bailout requirements. The County worked for over ten years to qualify for bailout before even contacting the Attorney General. Even then, it took two more years to convince the Attorney General to consent.
We have been counsel to the County of Merced for election and preclearance matters for over a decade, and we represented the County in the recent bailout action—Gerry Hebert was our co-counsel in Washington. We also represented the County (without Mr. Hebert’s involvement) in the 2006 litigation brought by Joaquin Avila and referred to in the article, Lopez v. Merced County.
First, Mr. Adams’s implicit characterization of Merced County’s bailout as a sweetheart arrangement bears no relationship to the actual facts. The County worked with USDOJ for more than two years on the bailout negotiations, including two in-person meetings in Washington, D.C., at which the County pleaded its case. USDOJ sent a team of investigators to the County who combed through 10 years of records pertaining to the County’s Section 5 compliance, as well as that of independent jurisdictions within the County’s boundaries. In addition, the County produced thousands of pages of documents at DOJ’s request, including 10 years worth of agendas and minutes for the County, and for virtually every city, school district and special district with territory in the County.
That process followed a long-running historical internal “audit” of electoral practices conducted by the County itself and in which USDOJ had no part. The audit was undertaken with a view toward qualifying for bailout and long pre-dated the NAMUDNO decision and even the 2006 VRA renewal. The County’s preclearance compliance record at the time it requested the United States Attorney General’s consent to bailout was absolutely complete except for two matters under California Proposition 218, which the County believed (and still believes) did not require preclearance. The County submitted them nevertheless in the spirit of the ongoing negotiations for bailout. Every major minority group in the County wrote a letter to the United States Attorney General in support of bailout.
Second, Mr. Adams is simply incorrect about the Lopez litigation. There was no “settlement”; the County won that lawsuit outright, having summary judgment granted in its favor. See Lopez v. Merced County, 2008 U.S. Dist. LEXIS 3941 (E.D. Cal. Jan. 16, 2008). Thus, the County was not disqualified from bailout by virtue of the provision relating to consent decrees entered within the last 10 years. 42 U.S.C. § 1973b(a)(1)(B).
And finally, regarding the submission of a number of historical voting changes for preclearance in connection with the bailout, there are a number of points to be made:
- All of those submissions, except for the two mentioned above, concerned independent subjurisdictions within the borders of the County over which the County has no control. The County had previously argued strenuously in the Lopez litigation, an enforcement action, that Section 5 was unconstitutional if the County were liable for the actions of these independent jurisdictions. That issue aside, Section 5 itself provides that oversights in preclearance compliance may be forgiven in a bailout action if they were “were trivial, were promptly corrected, and were not repeated.” 42 U.S.C. § 1973b(a)(3). In other words, Mr. Adams’s implication that Section 5 has a “no tolerance” standard—and that the Attorney General is therefore ignoring the command of Congress—is refuted by the text of Section 5 itself. In fact, the vast majority of the submissions, which the County made on behalf of these jurisdictions so that the bailout negotiations could proceed, were “precautionary” because they involved matters that the County did not believe required preclearance, but submitted anyway to avoid disputes that could harm negotiations.
- Merced County’s approach is also consistent with case law under Section 5, which holds that the preclearance obligation can be retroactively satisfied. See, e.g., Moore v. Caledonia Natural Gas Dist., 890 F. Supp. 547, 550 (N.D. Miss. 1995) (“‘retroactive federal approval satisfies the preclearance requirements of § 5.’ Since the new procedures were eventually approved, the court held that the changes did not violate the prescription of § 5.” (quoting East Flatbush Elec. Comm. v. Cuomo, 643 F. Supp. 260, 264 (E.D.N.Y. 1986) (three-judge § 5 court))). See also Waide v. Waller, 402 F. Supp. 902, 925 (N.D. Miss. 1975) (three-judge § 5 court) (“The belated satisfaction of the Voting Rights Act requirements moots the first prong of plaintiff’s attack on § 25-31-1, and we therefore certify that the challenged statute is in full compliance with the requirements of the Voting Rights Act.” (emphasis added)).
- Reviewing the pleadings from prior bailout actions—including ones granted well before the constitutionality of the 2006 renewal became an issue—shows that such “post hoc” preclearances are typical in connection with bailout, seriously undermining the notion that such an approach is part of a vast conspiracy to save Section 5. As just a few examples, Roanoke County, Virginia (bailed out 2001), Warren County, Virginia (bailed out 2002), and Shenandoah County, Virginia (bailed out 1999), all acknowledged—in their bailout action complaints filed with the D.C. District Court—having administered multiple voting changes without preclearance. While these changes were ultimately submitted by the jurisdictions prior to filing the bailout suits, and each received preclearance, not all the submissions were made before the policies were enforced.
Bottom line, Merced County’s nearly 10-year quest to bailout from Section 5 was fortuitously successful right after NAMUNDO and before Shelby County v. Holder, but appropriate and well-deserved nonetheless.