In my testimony before the Senate Judiciary Committee last week, I made four recommendations to make the VRA more likely to be upheld against a constitutional challenge that it exceeds Congressional power under the 14th and 15th Amendments. These proposals are aimed to make the law more “congruent and proportional” to a history of intentional state discrimination in the covered jurisdictions. Here were those recommendations:

I recognize that this is politically difficult, but Congress should update the coverage formula based on data indicating where intentional state discrimination in voting on the basis of race is now a problem or likely to be one in the near future…
[Second], Congress should take steps to make it easier for covered jurisdictions to bail out from coverage under section 5 upon a showing that the jurisdiction has taken steps to fully enfranchise and include minority voters. The current draft does not touch bail out, and few jurisdictions have bailed out in recent years.
[Third], Congress should impose a shorter time limit, perhaps 7-10 years, for extension. The bill includes a 25 year extension, and the Court may believe it is beyond congruent and proportional to require, for example, the state of South Carolina to preclear every voting change, no matter how minor, through 2031.
[Fourth], Congress should more carefully reverse only certain aspects of Georgia v. Ashcroft. Georgia v. Ashcroft makes it easier for covered jurisdictions to obtain preclearance, meaning that the burden on covered jurisdictions is eased (and therefore the law looks more “congruent and proportional”). Reversing the case as a whole, as this bill apparently could do-though the language in this respect is very poorly drafted-could weaken the constitutional case for the bill. I would suggest tweaking, rather than reversing, the Ashcroft standard.

(On top of these changes to strengthen the bill on constitutional grounds, I also suggested ways to make partisan manipulation of the preclearance decision by DOJ less likely.)
I recognize the uphill battle that getting any change to the bill is going to be, and I think that my first suggestion–tinkering with the coverage formula—is perhaps politically impossible (and that’s too bad, because that may be fatal to the Roberts’ Court’s review) at this point. But I do hope that Congress will focus more on the other issues, especially bailout.
Mike McDonald’s excellent contribution to The Future of the Voting Rights Act book shows how rare bailout has been. He then writes (pdf 33-34): “It is unknown why more covered jurisdictions have not litigated for their release. The reason may lie either with a too difficult bailout mechanism – particularly the proactive steps a jurisdiction must take to improve minority participation – or a lack of information and resources among covered jurisdictions. If the latter were the reason, more jurisdictions could bail out if they were provided with aid in preparing their bailout litigation.”
I’d add to Mike’s point another one: an unsuccessful attempt at bailout could cause a jurisdiction to be labeled as racist, a risk that does not exist when one simply applies for preclearance and has no objections from DOJ to preclearance.
My proposal for easing bailout would put the onus on DOJ (or some other entity, if we are worried about partisan manipulation of the process) to review each covered jurisdiction’s history, and to proactively take steps to inform jurisdictions that have met the requirements that they may bail out. If DOJ will make these decisions administratively, we might allow community members who disagree with a DOJ decision to grant bailout to appeal the decision to a district court.
How does this help with the constitutional problem? The argument would be that the coverage formula, even back in 1965, was not a perfect way of capturing those jurisdictions with a history of discrimination in voting on the basis of race. But it was a good, rough substitute. Today, as well, because section 5 is such a good deterrent, it is hard to come up with a formula to separate out those jurisdictions that still should be covered from those that have made enough progress. The “proactive bailout mechanism” I am suggesting is tailored to the Court’s concern of tying remedies to evidence of discrimination. But rather than using coverage as the “opt in,” proactive bailout serves for the opt out.
Proactive bailout (especially if coupled with other measures, such as a shortened time frame for renewal) could save the constitutionality of a renewed section 5. The case would be especially strengthened if DOJ could put proactive bailout into effect for some time period before the Supreme Court would hear a challenge to the constitutionality of a renewed section 5. The government could then show it is making a careful attempt to separate out those jurisdictions who still need to be subject to preclearance from other jurisdictions.