Pildes: On Bailout

On bailout: The original vision of Section 5 and the vision further emphasized by Congress in 1982, when it amended Section 5 in an effort to facilitate appropriate bailouts, was that the the unique regime of Section 5 would unwind itself over time. Jurisdictions would bailout where appropriate; Section 5 would have a more and more targeted reach; the scope of the Act would remain tied to where problems predominated. As it turns out, however, bailout has been close to non-existent, for practical purposes, throughout the history of the Act, including since 1982. With Gerry Hebert’s expert assistance, a handful of counties in Virginia have managed to bailout since 1982. But sensible policymakers should take no great solace in this. These counties all had de minimis black populations, perhaps around 5% on average if I recall. What they reveal about the bailout process for jurisdictions that actually have significantly-sized minority populations remains unknown.
I see three central potential causes for the failure of bailout to play the role envisioned for it, though only two have been mentioned thus far: (1) ignorance on the part of appropriate jurisdictions that bailout exists and they are eligible for it; (2) excessively high legal standards that make bailout impractical; (3) the charged nature of a jurisdiction seeking to “get out of the VRA,” particularly for risk averse elected officials. I do not know the relative contribution of these causes, or other potential ones. Indeed, an extremely productive role for Congress would be to examine this question, with an eye toward determining if the bailout process ought to be revised. However, I do know from my experience that officials in covered jurisdictions will frequently offer (3) as their first response. Others I have talked with confirm this.
This is relevant to assessing Rick Hasen’s proposal regarding the role of DOJ (or perhaps a commission of some sort) in providing data relevant to potential bailouts, and perhaps taking other steps to initiate the process (subject to judicial review perhaps). The central benefit of some proposal of this form is that it seeks to address (3) by taking some of the heat off of jurisdictions for taking the first step in pursuing a bailout process. For purposes of sensible policy, as well as the constitutionality of Section 5, there ought to be broadly shared interests in making it easier for jurisdictions to bailout where appropriate. If, as I suspect, (3) contributes significantly to the invisibility of bailout, then any improvement of bailout must come to terms with this issue. Mark’s response, which worries about the burdens on DOJ, does not take (3) into account at all in reacting to the proposal.
The former DOJ lawyers might be able to provide useful perspective on what informational role and burdens it would be reasonable to put on DOJ to facilitate appropriate bailout, given (3). My initial response to Rick’s proposal is that the process should be more of an administrative one, subject to judicial review. Rick preserves the original bailout structure, in which the AG and jurisdiction have to go to court. That seems a remnant of the original Section 5 that might make less sense today, as long as courts are there as a backstop. Of the practical things that can be done to bolster the constitutionality of a renewed Section 5, I think (a) making bailout more practical and effective and (b) shortening the term of renewal are the most feasible. And I think a well-thought through proposal on (a) is likely to generate the most widespread consensus of the two options.
—Rick Pildes

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