Writing in response to my recent post, Ed Still writes on the election law listserv:

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

Here is my response:

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

Gerry Hebert also will be posting his thoughts on the issue here shortly.