SEEKING A BAILOUT. Law Offices of J. Gerald Hebert, P.C. 191 Somervelle Street, #405 Alexandria, VA (703) (office)

Transcription

1 SEEKING A BAILOUT UNDER THE VOTING RIGHTS ACT Law Offices of J. Gerald Hebert, P.C. 191 Somervelle Street, #405 Alexandria, VA (703) (office)

2 What is a Bailout? It s.

3 Bailout State and local governments subject to the special provisions of the Voting Rights Act (including the preclearance provisions) can terminate coverage under these special provisions by seeking an exemption (known as a bailout ).

4 Supreme Court s 2009 NAMUDNO decision The constitutionality of Section 5 was challenged in Northwest Austin Municipal Utilities District Number One v. Holder. In an 8-1 decision, Supreme Court interpreted the bailout provisions of the VRA to allow the utility district to seek an exemption from Section 5 s requirements (bailout). In NAMUDNO,, the court held that all political subdivisions- -meaning, simply, any division of the state that discharges some governance function--may bail out. For now, Section 5 is still valid and applicable to redistricting, although several Justices have expressed skepticism about its constitutionality.

5 Section 5 of the Voting Rights Act Applies to 16 State

6 To Obtain Section 5 Preclearance Racially discriminatory purpose Racially discriminatory effect What must be shown to get a bailout?

7 Jurisdictions must show that within the last ten (10) years: No Test or Device Was Used to Determine Voter Eligibility No Federal Examiners Were Assigned Timely Submission of All Voting Changes No Objections by DOJ/Denials by DC Court

8 When Bailout is Sought Jurisdictions must show: Dilutive Voting Procedures Have Been Eliminated (i.e. dilutive at-large elections) Constructive Efforts to Eliminate Harassment or Intimidation of Voters Expanded d Opportunities for Convenient Registration and Voting Appointment of Minority Persons as Election Officials Throughout All Stages of Registration/ Electoral Process

9 Gathering the Relevant Information Population and Demographic Data Voting Data Registration/ Turnout Election Data The Statistics ti ti

10 The Electoral History Voter Registration Opportunities historically, has it changed (i.e. improved)? Changes to Method of Election Minority Candidacies how has the minority community s preferred candidates fared?

11 Pre-Clearance History DOJ Records State/City/County Records

12 Appointment of Election Officials Office of Voter Registration Electoral Board Poll Officials i

13 Advantages of Bailout Local Jurisdictions Seeking Bailouts Have Cited These Reasons: Chance to prove that it has fair practices without waiting for preclearance Less costly than making section 5 preclearance peceaa cesub submissions. sso s More flexibility and efficiency to make routine changes.

14 Disadvantages of Bailout Eliminate Federal Review of All Voting Changes to Insure Non-Discrimination Minority Community Currently is Routinely Contacted t by DOJ About Voting Changes (Note: Bailout Can Provide Opportunity to Engage Minority Community)

15 (65) Jurisdictions Have Bailed Out Since Congress Amended the Voting Rights Act in 1982 City of Fairfax, VA City of Harrisonburg, VA City of Winchester, VA City of Salem, VA Amherst VA Augusta VA Botetourt VA Clarke VA Essex VA Frederick VA Greene Country, VA Middlesex VA Page VA Roanoke VA Rockingham VA Shenandoah VA Warren VA Washington VA

16 Information on Jurisdictions that have sought and were granted Bailout Name of Jurisdiction Complaint Filed Date Bailout Granted Date Days Bailout Was Pending in Court % Minority Black % Minority Hispanic # of Changes Not Pre- Cleared at time bailout was first sought # of political subdivisions bailed out Fairfax City, Virginia 9/25/97 10/21/97 (26) 4.5% 5.2% 0 2 Frederick Virginia 4/19/99 9/9/99 (143) 1.7% 0.5% 0 5 Greene Virginia 9/8/03 12/19/04 (133) 6.1% 1.1% 1 3 Harrisonburg City, Virginia 2/14/02 4/17/02 (62) 55% 5.5% 72% 7.2% 0 2

17 Information on Jurisdictions that have sought and were granted Bailout # of Changes Days Not Pre- Bailout Bailout # of political Name of Complaint % Minority % Minority Cleared Granted Was subdivisions Jurisdiction Filed Date Black Hispanic at time Date Pending bailed out bailout in Court was first sought Roanoke Virginia 8/11/00 1/24/01 (166) 2.5% 0.5% 6 3 Rockingham Virginia 3/28/02 5/21/02 (54) 1.3% 2.7% 1 9 Shenandoah Virginia i i 4/21/99 10/15/99 (177) 11% 1.1% 07% 0.7% Warren Virginia 8/30/02 11/25/02 (87) 4.7% 1.5% 7 3 Winchester City, Virginia 12/22/00 5/31/01 (160) 9.1% 5.9% 0 1

18 Information on Jurisdictions that have sought and were granted Bailout # of Changes Days Not Pre- Bailout Bailout # of political Name of Complaint % Minority % Minority Cleared Granted Was subdivisions Jurisdiction Filed Date Black Hispanic at time Date Pending bailed out bailout in Court was first sought Amherst Virginia 5/6/08 8/13/08 (99) 19.8% 1% 0 2 Augusta Virginia 9/23/05 11/30/05 (68) 3.6% 0.9% 3 3 Essex Virginia i i 9/21/06 1/31/07 (132) 39%.01% 0 3 Middlesex Virginia 8/17/07 1/07/08 (143) 20.1% 0.6% 0 3 Salem City, Virginia 5/25/06 7/27/06 (63) 5.9% 0.8% 0 1

19 Information on Jurisdictions that have sought and were granted Bailout Name of Jurisdiction Complaint Filed Date Bailout Granted Date Days Bailout Was Pending in Court % Minority Black % Minority Hispanic # of Changes Not Pre- Cleared at time bailout was first sought # of political subdivisions bailed out Botetourt Virginia 6/08/06 8/28/06 (81) 3.5% 0.6% 0 5 Page Virginia 6/27/08 9/15/08 (80) 2.2% 1.1% 0 4 Washington Virginia i i 6/27/08 9/23/08 (88) 13% 1.3% 0.6% 06% 0 5 NAMUDNO Total 65

20 Why No Increase In # of Bailouts? Local governments unaware of Bailout and new opportunity afforded by NAMUDNO decision Too Costly? Too Burdensome? Bailout is neither costly nor burdensome

21 Bailout Recommendations DOJ should issue bailout guidelines ASAP: Publicity (notices/hearings) Flexible/reasonable approach to bailout Notify covered jurisdictions of the bailout opportunity DOJ-Notify organizations/individuals when a bailout is being sought

22 SEEKING A BAILOUT UNDER THE VOTING RIGHTS ACT Law Offices of J. Gerald Hebert, P.C. 191 Somervelle Street, #405 Alexandria, VA (703) (office)