"ACLU Challenges Lawmakers Who Aim to Gut Voting Rights Act, Says Proposals Would Eliminate Historic Federal Protection"

The ACLU has issued this press release, which links to this letter. I completely agree with the letter's opposition to the ridiculous proposal offered by Rep. Norwood to change the section 5 trigger to a formula that would include only Hawaii. But I don't agree with that the letter says about the proposed bailout amendment:

Furthermore, the bailout provision of the VRA works to ensure that the scope of Section 5 is not overbroad or otherwise constitutionally flawed. Congress designed the bailout formula to allow a jurisdiction that could demonstrate it had taken sufficient steps to remove bars to minority enfranchisement to be released from preclearance. All jurisdictions that have attempted to bail-out from coverage have been able to do so successfully. If, however, Section 5 or the bailout provision were to be weakened, then formerly covered jurisdictions will have escaped the need to make a showing of real progress in enfranchising their minority voters.

First, the fact is that very few jurisdictions have attempted to bail out (and those that have done so have small minority populations), and many apparently have been deterred for reasons Rick Pildes recently noted. Second, I don't see how "proactive bailout" would allow former covered jurisdictions to "escape[] the need to make a showing of real progress in enfranchising their minority voters." The DOJ would have to be satisfied that the jurisdiction has done so, and for practical purposes it won't be able to bail out without providing DOJ with information showing such progress. Moreover, if DOJ colluded and consented to bailout, the law would still allow intervenors to object to show that not enough progress has been made.

Posted by Rick Hasen at June 23, 2006 02:47 PM