Search Results for: bailout

CLC: “This week more jurisdictions moved forward with bailouts from the preclearance provisions of the Voting Rights Act as the Supreme Court weighs a challenge to the constitutionality of those provisions.  Yesterday, a three-judge court in Washington, DC approved a final consent decree exempting the City of Wheatland, California from the Act’s preclearance provisions.  On the same day, the Justice Department announced that it had reached agreement on a bailout with the city of Falls Church, Virginia (along with the Falls Church City Public School District) and submitted a proposed consent decree for approval to a three-judge court in the U.S. District Court for the District of Columbia.”

CLC press release.

Justin Levitt posts the order and notes its possible significance, As Ryan Reilly reported, a conservative group tried to block the bailout.  Both sides are using the New Hampshire case to debate the fairness and necessity of continued section 5 coverage for parts of the country.

Bryan Tyson, who worked for Rep. Lynn Westmoreland during the 2006 VRA reauthorization, penned this oped.

Rep. Westmoreland and I were strange bedfellows back in 2006, when he (a conservative Republican) pushed my proposal to have “proactive bailout” added to the 2006 legislation.

Nate Persily, Charles Stewart III, and Steve Ansolabehere have written an important new paper [updated], which I have now posted.  The paper comes just in time for argument in the Shelby County case.  Here is the introduction (minus the footnotes):

Three years ago, when the Supreme Court last considered the constitutionality of the coverage formula of Section 5 of the Voting Rights Act, we submitted an amicus brief on behalf of neither party analyzing the relevance to the case of voting patterns in the 2008 election.1 In particular, the brief and a subsequent Harvard Law Review article that expanded upon it,2 highlighted relative rates of racially polarized voting in the covered and noncovered jurisdictions to demonstrate where racial polarization had increased over time. Although some states had improved and others worsened in the gap in candidate preferences between racial groups, the brief and article concluded that, contrary to much conventional wisdom, racial polarization had actually increased in the 2008 election, especially in the areas covered by section 5 of the VRA.

We find ourselves in much the same position now as we did three years ago. We also find ourselves coming to the same conclusions, which have become, if anything, more strongly supported by recent data. Voting in the covered jurisdictions has become even more polarized over the last four years, as the gap between whites and racial minorities has continued to grow. This is due both to a decline among whites and an increase among minorities in supporting President Obama’s reelection. This gap is not the result of mere partisanship, for even when controlling for partisan identification, race is a statistically significant predictor of vote choice, especially in the covered states.
Moreso now than four years ago, both sides in the VRA debate look to the 2012 election to support their case. Critics of the VRA point to the reelection of the nation’s first African American president, amidst record rates of minority voter turnout, as evidence of how “times have changed” since 1965. The “strong medicine” of the VRA is no longer needed in the South,3 they argue, because the historic barriers to minority participation and office holding have largely vanished. For supporters of the VRA, the history since 1965 and the 1982 reauthorization demonstrate the continuing danger to minority voting rights in the covered jurisdictions. They point also to this past election as confirming Congress’s suspicions in the reauthorization process as new obstacles to voting, such as photo identification laws and restrictions on early voting, were more prevalent in the covered states. In the run up to the 2012 election, section 5 proved it had bite, as photo ID and other laws were prevented from going into effect by the DOJ or the District Court in Texas, South Carolina, and Florida, and Texas’s congressional redistricting plan was found to be intentionally discriminatory.
These contrasting views of the relevance of the 2012 election may very well provide the media frame for the debate over section 5 in the current challenge to the VRA in Shelby County v. Holder. Of course, the contending narratives of – “look how far we’ve come” versus “see how much voting discrimination persists” – are usually not the stuff of constitutional arguments. Moreover, the results of a highly salient and well-funded presidential election may seem beside the point for the constitutionality of a law that has its greatest effect in the context of local, below-the-radar, election law changes.
All involved in the debate over the VRA must admit, however, that we do not know exactly what the world will look like if section 5 is struck down. Of course, the South would not revert back to Jim Crow days: politics has evolved beyond the days of threatened lynchings for the exercise of the franchise. But the many examples in the legislative record of voting rights violations prevented by the VRA hint at what might happen if the covered jurisdictions were otherwise unconstrained. Even if Jim Crow will not return, the familiar regional pattern of discrimination might, as new stratagems replace old ones with minority voters becoming collateral damage in increasingly vicious partisan fights.
The litigants in the Shelby County case disagree over the applicable constitutional test and the necessary evidentiary showing for upholding the VRA. In particular, the challengers assert that Congress needed to distinguish the covered from the noncovered jurisdictions, in order to demonstrate that the coverage formula captures the areas of the country (and only those areas) that pose the greatest threat to minority voting rights. From their perspective, the coverage formula can only be “congruent and proportional”4 (and therefore constitutional) if it is precisely tailored to capture only “guilty” jurisdictions and no “innocent” ones.
Although defenders of the VRA point to higher rates of successful section 2 VRA cases as one example of where the covered states have distinguished themselves as voting rights iolators, they also maintain that Congress need only justify continued coverage by finding persistent dangers to voting rights in covered areas alone. The coverage formula, from its inception, has always been over and underinclusive of the jurisdictions of concern. Overinclusivity is addressed by the bailout provision, which allows “good” jurisdictions to escape coverage when they can demonstrate a clean voting rights record. So long as the coverage-formula-plus-bailout regime represents a rational attempt to address the problem of minority voting rights violations, defenders argue, the law is constitutional.
The challengers’ argument against the coverage formula would put Congress in an awkward position whenever justifying a geographically specific civil rights law. If the covered jurisdictions remain completely unchanged in their disrespect for minority voting rights, then the VRA is not working as promised. On the other hand, successful deterrence of voting rights violations in the covered states becomes evidence of its unconstitutionality if those jurisdictions become less distinct. In the oral argument in NAMUDNO, Chief Justice John Roberts described this problem as “the Elephant Whistle problem.” To summarize the allegory: A guy with a whistle around his neck walks into a bar. Another guy asks him, “why are you wearing a whistle around your neck?” “It’s to keep away elephants,” the first responds. “How do you know it’s working?” the second asks. “Do you see any elephants around here?”
If the Court takes the elephant whistle problem seriously, the challenge for defenders of the VRA is to find a metric that can hint at the danger of the VRA’s removal while simultaneously not suggesting it either has been ineffective or has outlived its usefulness. To some extent, the number of preclearance denials and DOJ requests for more information can do this by pointing at the types of laws that would have gone into effect but for the existence of the VRA. But even those data are incomplete because they cannot pick up the VRA’s deterrent effect – that is, the laws that were never proposed or passed because politicians knew they would not be allowed to go into effect. We should expect the number of laws denied preclearance to be small as compared to the number of laws that are never passed because of the VRA’s deterrent effect.

Joan Biskupic for Reuters

Mark Sherman for AP (on bailout)

Bob Barnes for WaPo

NYT Room for Debate (multiple contributors)

Spencer Overton

Ryan Emenaker

Dan Tokaji

Press release:

On January 2, 2013, two of Nielsen Merksamer’s leading voting rights experts, Marguerite Leoni and Chris Skinnell, filed an amicus curiae brief in the United States Supreme Court, in the pending constitutional challenge to Section 5 of the federal Voting Rights Act (Shelby County, Ala. v. Holder)….

In August of 2012, after more than two years of investigation, the United States Attorney General found that Merced County met the criteria, and consented to Merced County’s bailout. Marguerite and Chris represented the County in the bailout action.  The bailout also had coattails, freeing more than 80 cities, school districts and special districts with territory in the County from the need to comply with Section 5′s preclearance obligation.  Merced County’s was far and away the largest and most complex bailout action to be approved by the United States District Court for the District of Columbia since the bailout criteria were last amended by Congress in 1982.

The purpose of Merced County’s just-filed amicus brief was to provide the Supreme Court with information regarding Merced County’s successful Section 5 bailout, and to respond to attacks on the County’s bailout in recent press coverage and court filings, which suggest that the County was not entitled to bail out, and the Attorney General permitted the County to bail out improperly to support his argument that bailout is a viable option.

Sam Bagenstos blogs.

Regular readers of the blog will know this is my take as well.

Following up from this post and this guest post from Merced’s lawyers, see see here and here.

The following is a guest post from Chris Skinnell and Marguerite Leoni:

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.

I expect this argument to get a lot of play.

The great irony here, for those who don’t follow this issue closely, is that you have people who oppose section 5 of the VRA complaining that DOJ is making it too easy for those jurisdictions subject to its preclearance provision to escape from the Act’s coverage.

UPDATE: Adams says he’s not an opponent of section 5.

I’ve noted that the New Hampshire bailout request seems calculated to help the constitutional case for the Voting Rights Act as the Supreme Court hears the Shelby County case.

But conservatives are signalling they may not go along.

See this blog post linking to the complaint.

And in case the connection to the Shelby County case (in which the Supreme Court will consider the constitutionality of section 5) is lost on anyone, Gerry Hebert explains: “It should be important to the Court, in considering Section 5’s constitutionality, that not a single jurisdiction seeking a bailout has been turned down, and that States and political subdivisions are pursuing bailouts with ease in greater numbers than ever before.”

The Shelby County opinion is here.  Judge Williams dissented. The court also issued a unanimous opinion in the related LaRoque case, finding the issue mooted by DOJ’s belated preclearance of the law in question.

From Judge Tatel’s majority opinion in Shelby County:

The point at which section 5’s strong medicine becomes unnecessary and therefore no longer congruent and proportional turns on several critical considerations, including the pervasiveness of serious racial discrimination in voting in covered jurisdictions; the continued need for section 5’s deterrent and blocking effect; and the adequacy of section 2 litigation. These are quintessentially legislative judgments, and Congress, after assembling and analyzing an extensive record, made its decision: section 5’s work is not yet done. Insofar as Congress’s conclusions rest on predictive judgments, we must, contrary to the dissent’s approach, apply a standard of review even “more deferential than we accord to judgments of an administrative agency.” Turner Broad., 520 U.S. at 195. Given that we may not “displace [an agency’s] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo,” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951), we certainly cannot do so here. Of course, given the heavy federalism costs that section5 imposes, our job is to ensure that Congress’s judgment is reasonable and rests on substantial probative evidence. See Turner Broad., 520 U.S. at 195 (“In reviewing the constitutionality of a statute . . . [o]ur sole obligation is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.”
(internal quotation marks omitted)). After thoroughly scrutinizing the record and given that overt racial discrimination persists in covered jurisdictions notwithstanding decades of section 5 preclearance, we, like the district court, are satisfied that Congress’s judgment deserves judicial deference.

The majority also relied upon section 2 evidence, especially Ellen Katz’s study, to make the point that the covered jurisdictions remain at greater risk of intentional discrimination in voting on the basis of race to justify different treatment under the law.  It also relied heavily on the increasing number of jurisdictions “bailing out” from section 5 coverage—this increased bailout activity seems to have been orchestrated directly to allow courts to make this determination.  The majority concludes by noting that it is deferring, although the “legislative record is by no means unambiguous.”

Judge Williams’ dissent dives into the data too, and finds little basis to find a problem with minority voter turnout, the number of minority voter officials, or the extent of unconstitutional state racial discrimination in voting to justify the burden of preclearance in covered jurisdictions of all of these voting changes. He disagrees strongly with the relevance and importance of the section 2 data.

In one portion of the dissent with contemporary relevance, Judge Williams writes:

Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana? A glimpse at the charts shows that Indiana ranks “worse” than South Carolina and Texas in registration and voting rates, as well as in black elected officials (Figures I, II and III). As to federal observers, Indiana appears clearly “better”—it received none (Figure IV). As to successful § 2 suits South Carolina and Texas are “worse” than Indiana, but all three are below the top ten offenders, which include five uncovered states (Figure V). This distinction in evaluating the different states’ policies is rational?Despite a congressional record of over 15,000 pages and 22 hearings, Shelby County, 811 F. Supp. 2d at 496, there is little to suggest that § 4(b)’s coverage formula continues to capture jurisdictions with especially high levels of voter discrimination. To the extent that the answer is, as the district court suggested, that Congress wished to “continue to focus on those jurisdictions with the worst historical records of voting discrimination,” id. at 506, such an overwhelming focus on historical practices appears foreclosed by Northwest Austin’s requirement that current burdens be justified by current needs.
It goes without saying that racism persists, as evidenced by the odious examples offered by the majority, see Maj. Op. at 27-29. But without more evidence distinguishing current conditions in the covered jurisdictions from those in the uncovered ones, § 4(b)’s coverage formula appears to be as obsolete in practice as one would expect, in a dynamic society, for markers 34-to-59 years old. Accordingly, I dissent.

Judge Williams held that only the coverage formula was unconstitutional and did not fully reach the constitutionality of section 5 as a whole.  But if the Supreme Court agreed with him, the result would be the same: section 5 would be unconstitutional to apply (though in theory Congress could try to reenact it with a new coverage formula).

And this may be the most significant aspect of things. Judge Williams has provided a way for the conservatives on the Supreme Court to end Section 5 without having to declare that it would necessarily be unconstitutional if Congress tweaked it. And of course in this Congress there would not be a revised section 5.

I expect Shelby County to seek cert., and for the Court to agree to hear this case next term, with a decision likely by June 2013.  It is also possible that another one of these cases, such as the Texas or South Carolina section 5 challenges related to their voter i.d. laws, could leapfrog over these cases and be heard first by the Court.

As to what the Court will do, my money is on the Court holding—one way or another–that section 5 can no longer be enforced against the covered states.