Gerry Hebert offers these interesting observations on the proactive bailout proposal.
UPDATE: Luke Peterson emails:

When it comes to the bailout provision of the VRA, it is hard to argue with Gerry Hebert. I would like to add one point to Hebert’s counter-arguments to Hasen’s proactive bailout proposal, and then add a significant addition to Hebert’s proposal.
First, it should be remembered that prior to the 1965 VRA, the DOJ faced the impossible burden of investigating and litigating for injunctive action against discriminatory devices, policies, and practices. The task proved too great a burden for the DOJ’s limited resources. Precisely for this reason was Section 4 included in the Voting Rights Act. In 1982, Rep. Hyde’s H.R. 3198 & 3473 introduced the notion of a bailout with set criteria that would allow a covered jurisdiction to bailout at any time if it met the criteria; thus providing an incentive to jurisdictions to seek full compliance with the VRA. Hyde’s proposal would also have eliminated the coverage mechanism and preclearance requirements for all jurisdictions except those that would be covered by the language minority provision. The House Judiciary committee accepted (though in a dramatically altered form) Hyde’s argument that an attainable bailout should be provided in the Act. They roundly rejected, however, the notion that the coverage formula be virtually eliminated because it would be a return to the “pre-1965 litigative approach” that proved impossible for the DOJ.
I believe that the proactive bailout would place a similar burden on the DOJ as was felt under the “pre-1965 litigative approach.” I believe the task of determining who may qualify for a bailout may prove as onerous as the pre-1965 task of determining who was violating the previous voting rights acts.
What is needed then is a proposal that provides better incentive to jurisdictions to seek bailout, while not placing an excessive burden on the DOJ.
I agree with Hebert’s proposal, but would risk going one step further. I propose that the preclearance provision be eliminated and replaced with a quarterly report to the DOJ. Jurisdictions would not be required to preclear changes, only to report them, while the DOJ would retain the right to investigate and overturn voting changes which it determines to be discriminatory. In this report covered jurisdictions would be required detail all voting changes, the rationale behind them, and a detailed report on the jurisdiction’s progress toward the bailout criteria as currently constituted.
There would be a number of advantages to such a system. First, while a quarterly report on all voting changes would be at least as burdensome as preclearance of all changes, because none of the changes must be precleared before they can go into effect, this would spell a significant reduction in the extent of federal intrusion into state autonomy, thus strengthening the renewed sections’ chances of surviving judicial scrutiny.
Secondly, because the quarterly reports will be nearly identical to the fact finding report that jurisdictions seeking bailout must produce, there would be a significant incentive to meet the bailout criteria so that they can file a single bailout request rather than quarterly reports on an indefinite basis.
Finally, as recent controversies have demonstrated, there is significant fear that the DOJ has ceased to impartially consider preclearance requests. If such truly is the case, or were to become the case, preclearance would be an undesirable mechanism for enforcement of the VRA because it would then become a shield to jurisdictions seeking to pass discriminatory voting changes. A quarterly report would rather make proposed voting changes a matter of record, force jurisdictions to explain their motives, and allow for public pressure on the DOJ if it fails to investigate a change that appears discriminatory.
I appreciate Hasen’s proposal, above all for the spirit in which it is proposed. I feel that a proactive bailout is an excellent idea, but would place an excessive burden on the resources of the DOJ. I hope the House will give Hasen’s proposal the consideration it deserves and that this will be the beginning of the debate the VRA renewal has needed and, thus far, lacked.